Immigration Practice Areas

·        Naturalization & Citizenship

·        Immigration through Family Ties

·        Immigration through Employment

·        Business Non-immigrant Visas

GREEN CARDS THROUGH FAMILY TIES

Immediate versus non-immediate relatives

Green cards are immediately available subject to the required petition being approved for certain 'immediate relatives' of US citizens. A spouse of a U.S. citizen is considered an immediate relative.

Non-immediate relatives' of U.S. citizens or Green card holders are subject to annual quotas and as such are subject to often lengthy delays before they obtain their green card. These delays typically last over 4 years and even much longer. A spouse of a green card holder is considered a non- immediate relative. Grandparents, aunts, uncles, in-laws and cousins cannot sponsor a relative for immigration.

IMMEDIATE RELATIVE CATEGORIES

NON-IMMEDIATE RELATIVE CATEGORIES

Persons seeking to immigrate in one of the family based preference categories will qualify for immigrant status only if they have the necessary relationship to a U.S. citizen or Lawful Permanent Resident as described below.

• First Preference- this category applies to an adult unmarried child of a U.S. citizen.
   
• Second Preference A- this category applies to the spouse or unmarried child of a permanent resident/Green Cardholder.
   
• Second Preference B- this category applies to the adult unmarried child of a permanent resident/Green Cardholder.
   
• Third Preference- this category applies to the married child of a U.S. citizen.
   
• Fourth Preference- this category applies to brothers or sisters of U.S. citizens.
  
  

Immigration through Employment- Green Card through Your Prospective Employer

You can obtain permanent resident status, otherwise known as a Green Card, through an employer in the United States. The first step is to obtain the appropriate visa depending on your qualifications.

The following visa classifications are first preference:

• EB-1-1 visas- these visas are available to people who have extraordinary ability in science, the arts, business, education or athletics. To qualify, you must be recognized as a top person in your field, have won international awards, or have published materials in professional journals. Typical applicants are medical professionals. No employer is required.
   
• EB-1-2 visas- these visas are available to professors and researchers. If you are recognized in your academic or scientific area, and have a teaching position lined up, you may qualify.
   
• EB-1-3 visas- these visas are available to multinational executives and managers.
   

EB-2 visas- these visas are classified as second preference. They are available to persons with advanced degrees, professionals, or persons with exceptional ability. Labor certification from your prospective employer or the national interest waiver may be the basis for your application.

EB-3 visas- these visas are classified as third preference. They are available to skilled workers and professionals. You obtain this visa with a labor certification from your prospective employer.

EB-4 visas- these visas are available to religious workers. You must have worked in the field for a 2 year period.

EB-5 visas- these visas are available to those who are investing in a United States business with a specific amount of money, $500,000 or higher.

 New PERM Lab Certification Rules and Options  

As background, the labor certification process in the past several years has slowed significantly to the point where a regular labor certification can take as much as four years to be processed and an RIR case can take over two years. The Department of Labor (DOL) has sought to address these backlogs by consolidating cases in what they are calling ¿backlog reduction centers¿.  The backlog reduction process started last month and we will hopefully begin seeing signs of improvement during the next year.  It is impossible at this time to predict whether or not the process will be significantly improved but we are at least encouraged that the Department of Labor has taken steps to address the problems.  The biggest news in the labor certification area is the publication of the final rules for the PERM program.  This is a new type of labor certification process which was initiated on March 28, 2005.  All labor certification applications filed on or after that date must be filed pursuant to the PERM regulations.  All cases that have been filed prior to March 28, 2005 will be processed under the old rules either as a regular case or an RIR case. 

A Summary of the New PERM Process

As with the old process, PERM requires the employer to develop an education and/or experience set of requirements for the position sought for labor certification.  This is by far the most critical part of any labor certification case under any system and it is even more important under the PERM process.  In determining the actual minimum requirements for the position based on education and/or experience, the employer is required to use similar rules to those which we have used under the old process.  For example, PERM will still utilize the concept of business necessity and the general prohibition against any combination of duties.  However, PERM has adopted a modified rule regarding the use of experience gained with the same employer which is much more restrictive than under the old system.  These issues are important because if there is even one qualified U.S. worker for the job during the recruiting process, the process must stop.

The PERM process makes it even more important that we carefully analyze the actual minimum requirements before the case is started.  The reason for this is that the new process allows the employer to file the labor certification application without any supporting documentation.  In other words, the Department of Labor will review the case based upon the filing of one form.  As is discussed below, although this sounds like a much simpler process than in the past, it is actually much more dangerous and could very possible lead to disastrous results.

Once the actual minimum requirements for the position have been determined, the employer is required to recruit pursuant to a complicated set of options.  To determine which set of options apply to a particular case, the first question is whether or not the position is "professional".  Generally, any position which requires at least a bachelor's degree will be considered "professional".  Those positions which generally do not require a bachelor¿s degree will not be considered professional and therefore have a different set of recruiting requirements.

Both professional and nonprofessional positions must recruit by placing an advertisement in a newspaper of general circulation in the area of intended employment on two separate Sunday editions.  The employer must also open a job order with the State Employment Commission which must remain open for at least thirty days.  Finally, for all labor certification cases, the employer must post an internal notice for at least ten days.

The "professional" positions, which will constitute the majority of labor certification applications, will be required to complete three additional recruiting attempts in addition to the ones listed above.  These three additional recruitment steps must come from the following list:

     1.  Job Fairs

     2.  Posting on the Employer¿s website

     3.  A job search website other than the employer¿s

     4.  On campus recruiting

     5.  Trade or professional organizations

     6.  Private employment firm

     7.  An employee referral program if it includes incentives

     8.  A notice of the job opening at a campus placement office if the 

          job requires a degree but no experience

     9.  Local or ethnic newspapers to the extent they are appropriate

          or the job opportunity

10. Radio and television advertisements

All of the recruiting steps must be completed within 180 days of filing the application.  In other words, recruiting efforts that are conducted more than 180 days prior to filing the application will not be considered.  In addition, at least two of the additional recruitment steps for professional positions must take place more than 30 days prior to filing the application.

The Department of Labor has indicated in its comments to the new regulations that it anticipates issuing labor certification decisions within 60 days of filing the application.  That would appear to be a welcome change to the current system which currently takes years to receive a decision but in reality it is only the first possible step in what could turn out to be a nightmare for the employer and the employee.

What Happens After the Department of Labor Makes a Decision on the Application?

Once the Department of Labor receives the application under the PERM program, it has three options.  First, it can simply approve the labor certification application and issue the certification.  Second, the DOL may issue an "audit letter" which requires the employer to prove each and every element of the case including all of the recruiting sources, a review of all of the applicants and the specific reasons for disqualification and any other issue, which the Department of Labor wishes to review.  The third option is for the Department of Labor to require "supervised recruitment" which means that the entire recruiting process would have to be conducted again under the supervision of the government and pursuant to whatever sources of recruitment are ordered.

The best outcome of the three is the issuance of the labor certification and the approval of the case.  However, the Department of Labor has retained the authority to invoke revocation proceedings against any employer who has an approved labor certification.  The new regulations also allow the Department of Labor to initiate this revocation at any time in the future.  It is unclear whether or not this can be initiated after permanent residence is granted but it certainly can be initiated prior to that time.  Therefore, even the grant of the labor certification does not mean that the case is over.  In contrast, under the current system, the only way the Department of Labor can reopen a labor certification that has already been approved is if there has been fraud or misrepresentation in the processing of the case.  Under the new PERM program, the basis for the reopening of the case can simply be an investigation of the employer¿s recruiting efforts.   And remember, if there was only one qualified worker who applied during the recruiting process, the case should never have been filed.

In addition to the issues concerning the "audit letters," the "supervised recruitment," and the possibility of reopening the proceedings and revoking the labor certification, there are also serious questions regarding the prevailing wage determination which has been changed substantially under PERM as well as other issues.
 

NON-IMMIGRATION VISAS

Non-immigration visas allow the holder to work in or visit the United States for a specified amount of time. These visas don't just apply to business. These visas have very specific requirements, which must be met for your visa application to be successful.

• H1-B visas- these visas are available to people in specialty occupations, such as those with university degrees or special work experience.
• F-1 visas- these visas are available to students who wish to study in the United States.
• J-1 visas- these visas are available to exchange students or visitors. Included are au pairs.
• O visas- these visas are available to persons with extraordinary ability in business, education, science, art or athletics.
• L visas- these visas apply to intra-company transfers, or persons coming to the United States to work for a company that has offices both inside and outside of the United States.
• E-1 visas and E-2 visas- these visas are available to treaty traders and treaty investors.
• R visas- these visas are available to religious workers.

What is an H-1B Visa?

An H-1B visa is a work permit issued by a US Consulate/Embassy to an "alien"/foreign worker enabling him/her to work in the US temporarily. There are other options available for those who wish to work in the United States temporarily, like getting an intra-company transfer visa (L-1), or a business visa (B-1), or even a green card. The H1B work permit visa is the most common one

Who is Eligible?

The H-1B work permit is issued to "professionals" who are working in a "professional capacity." "Professional" means that the worker must have at least a bachelor's degree or the equivalent in work experience. "Working in professional capacity" means that the person is coming to work in the US not to pursue a hobby or a past-time or for giving free advice or humanitarian service but to earn money/livelihood.

Common examples of professionals working in a professional capacity include engineers, teachers, lawyers, accountants, nurses, computer professionals, market research analysts, business analysts, economists, IT professionals such as programmers, systems analysts, database administrators; health care professionals, such as physical therapists and laboratory technicians, and variety of other types of professionals.  For every year of formal education lacking, three years of professional experience can be substituted.

What does your Employer do?

The employer has to certify that you will be hired to fill a professional position. The employer will also have to certify that he will be paying you the 'prevailing wage' for the position. The prevailing wage must be determined from an objective wage survey of similarly employed professionals in the same geographic area as the one where you will be employed.

A Labor Condition Attestation must also be filed with and approved by the Regional Department of Labor (DOL) office. This application assures the DOL that the company would provide you with a fair salary and equal benefits as a US citizen. The Employer does not have to certify that he is unable to find similarly qualified US workers for the job offered.

H-1B PORTABILITY-CHANGE OF EMPLOYERS

1) You must have been lawfully admitted to the United States;

2) The new H-1B employer must file a petition with the INS on your behalf, before your period of stay expires; and,

3) After your lawful admission to the United States, you must not have been employed without authorization.

If you meet all three of these criteria, you may start working for the new employer as soon as your new H-1B is filed with the INS. There is no minimum or maximum waiting time. You may start working for the petitioning employer immediately

K-visas- when a U.S. citizen wishes to bring in an overseas spouse or fiancées

Once an individual is either married to a US citizen or is a fiancée of a US citizen and wish to come to the US to apply for a green card they are no longer eligible for a Tourist visa or visa waiver.

The reason for this non-eligibility is because they no longer have a temporary or non-immigrant intent-and as such they are technically ineligible for a Tourist visa-Indeed to apply for a tourist visa and enter the US as a tourist would constitute visa fraud and a ground for exclusion. If after the marriage, or of in any event, the spouse does not intend to file for a green card in the United States but return home to their residence abroad then a Tourist visa is appropriate in this case.

If when the individual entered the US they did not intend to marry a US citizen and apply for a green card such a problem would not arise as long as they do not fall foul of the 30 day/60 day/90 day rule on non-immigrant intent. Basically, if someone comes to the US on a tourist visa and months later, having overstayed, they meet and decide to marry a US citizen, no fraud has been committed on their part and they are eligible to apply for a green card in the US.

Therefore, a US citizen wishing to bring a non-citizen spouse permanently to the United States has three options.

1. Apply for a K-1 fiancée visa for their overseas fiancée. The fiancée would be able to enter the US to marry the US citizen within 90 days of arrival and then apply for a green card in the he normal way

2. If already married to the overseas spouse-apply for a K-3 spousal visa-once in the US the spouse can apply for a green card in the normal way

3. If already married-file directly for a green card thru the overseas US consulate.

L-1 INTRA COMPANY TRANSFEREES

In General

The L-1 visa enables an overseas company to transfer key managers and personnel to run a US based subsidiary or affiliate. It can also be used to transfer mangers and key personnel to start up a newly formed US subsidiary or affiliate, although proof that the US operation has been constituted will be required (signed business lease, documents of incorporation etc.)

Significantly the L-1 visa category is not restricted to operations of a certain size, nor is it required that the overseas and US entities engage in the same type of business.

A major advantage of the L-1 is that under certain circumstances an L-1 holder may be able to later obtain a Green card without going through the exhaustive Labor certification process. Furthermore, the spouse of an L-1 visa holder can obtain work authorization during their stay in the US.

The L-1 visa can be obtained relatively quickly, often within 45 days. However, to guarantee approval or determination of the petition within 15 days the applicant can pay an additional $1000 filing fee for premium or expedited processing.

L-1-Requirements

You qualify for an L-1 visa if you have been employed outside the U.S. as a manager, executive or person with specialized knowledge for at least six months out of the past three years, and you are transferred to the U.S. to be employed in a similar position. The U.S. company to which you are transferring must be a branch, subsidiary, affiliate or joint venture partner of your non-U.S. employer. The non-U.S. company must remain in operation while you have the L-1 visa. When we use the term 'non-U.S. Company,' we mean only that it is physically located outside the U.S. Such a company may well be a foreign division of an American-based business or it may have originated in a country outside the U.S. Either one fits the definition of non-U.S. company. To get an L-1 visa, it is not necessary that either your non-U.S. or prospective U.S. employer be operating in a particular business structure. Many legal forms of doing business are acceptable, including, but not restricted to, corporations, limited corporations, partnerships, joint ventures and sole proprietorships.

 Manager, Executive or Person With Specialized Knowledge

To be eligible for an L-1 visa, the job you hold with the non-U.S. company must be that of manager, executive, or person with specialized knowledge. You must have worked in that position a total of at least six months out of the past three years. For immigration purposes, the definitions of manager, executive and specialized knowledge are more restricted than their everyday meanings.

a. Manager

A manager is defined as a person who has all four of the following characteristics:

·        He or she manages the organization or a department of the organization

·        He or she supervises and controls the work of other supervisory, professional or managerial employees or manages an essential function of the organization.

·        He or she has the authority to hire and fire those persons supervised. If none are supervised, the manager must work at a senior level within the organization.

·        He or she has the authority to make decisions concerning the day-to-day operations of the portion of the organization that he or she manages

First-line supervisors are lower management personnel who directly oversee non-management workers. A first-line supervisor is not normally considered a manager unless the employees supervised are professionals. The word "professional" here means a worker holding a university degree.

A manager coming to work for a U.S. office that has been in operation for at least one year also qualifies for a green card as a priority worker.

b.  Executives

An executive is defined as a person who has all four of the following characteristics:

·        He or she directs the management of the organization or a major part of it.

·        He or she sets the goals or policies of the organization or a part of it.

·        He or she has extensive discretionary decision-making authority.

·        He or she receives only general supervision or direction from higher-level executives, a board of directors or the stockholders of the organization.

An executive coming to work for a U.S. office that has been in operation for at least one year also qualifies for a green card as a priority worker.

c. Persons with Specialized Knowledge

The knowledge that is referred to in the term "specialized knowledge" covers any knowledge that specifically concerns the employer company, its procedures, products or international marketing methods.


Accompanying Relatives

When you qualify for an L-1 visa, your spouse and unmarried children under age 21 can get L-2 visas simply by providing proof of their family relationship to you. L-2 visa spouses are also able to obtain work authorization during their stay in the US.

Applying for a Green Card From L-1 Status

If you are eligible for or now have an L-1 visa as either a manager or an executive, you may also be eligible for a green card through employment. In addition to your eligibility, you also have the benefit of being able to get the green card without going through the rigorous procedures of Labor Certification, which is usually the first step required for those seeking green cards through employment. The purpose of the Labor Certification procedure is to show that there are no American workers available to take the U.S. job that has been offered to you. However, if you qualify for L-1 status as a manager or executive, you also fall under a green card preference category called priority workers. This category is exempt from Labor Certification requirements.

Applying for a Green Card From R-1 Status

The R-1 religious worker visa is for ministers, those in a traditional religious occupation, and those with a religious vocation.  The R-1 visa allows for a maximum 5-year stay for the R-1 worker and dependent spouse and children (R-2 visa holders).

R-1 Visa Requirements

1.      The R-1 sponsoring organization is a bona fide religious organization with 501(c)(3) tax-exempt status, or one that would qualify for the 501(c)(3) status if it applied.

2.      The R-1 visa applicant must have belonged to the religious denomination of the organization for at least two years.

R-1 Visa Filing Process

R-1 religious worker status can be obtained both abroad and in the United States.  In each case, it is a one-step process.

R-1 Change of Status in the United States.    You can apply for a change of status to R-1 nonimmigrant religious worker if you are currently in the United States in another valid nonimmigrant status.

If you change your status to R-1 in the United States, you will need to apply for an R-1 visa at a U.S. Consulate next time you travel.

The maximum initial stay for an R-1 nonimmigrant religious worker is 3 years, which may be extended to a total of 5 years by filing a new I-129 petition.

R-1 Visa at a United States Consulate