IMMIGRATON LAWYER IN USA

E1 Treaty Trader

General Qualifications of Treaty Trader

• Be a national of a country with the United States maintain a treaty of commerce and navigation. (Ex. 2001 Plan Colombia)
• Substantial trade with the treaty nation.
• Principal trade is between the United States and the treaty country. (Ex. NAFTA includes multiple countries but the trading must between U.S. and the country where the Foreign National is from, for example Mexico).
• May apply directly at US Embassy or inside the United States. The principal difference is that without a visa stamped at the US Embassy you will not be able to leave and renter the United States.
• All immediate family including spouses and children under 21 may travel with the investor.
• For a complete listing of qualifying countries, visit:

https://travel.state.gov/content/ travel / es / us-visas / visa-information-resources / fees / treaty.html

E2 Treaty Investment

General Qualifications of Treaty Investor

• Be a national of a country with the United States maintain a treaty of commerce and navigation.
• Invest a Substantial Amount: Generally this means an amount that would make the business viable and is often explained by the business plan for the entity. For example, if you open a restaurant but you only have enough capital to purchase or lease the equipment, the plan will not be viable because their insufficient funds reaming for human resources or other capital necessities of the business.
• New Commercial Enterprise: A new business is often necessary. However, certain exceptions may be made for business rescued by outside investment.
• Ownership and Control of Enterprise: Typically this means at least 51% ownership and control of the business.
• Source of Funds: The funds invested must not be tied to international Terrorism, Narco-trafficking or other illicit activities.
• Create U.S. Jobs
• May apply directly at US Embassy or inside the United States. The principal difference is that without a visa stamped at the US Embassy you will not be able to leave and renter the United States.
• All immediate family including spouses and children under 21 may travel with the investor.
• For a complete listing of qualifying countries, visit:

https://travel.state.gov/content/ travel / es / us-visas / visa-information-resources / fees / treaty.html

EB 5 Alien Entrepreneur

• Option 1: TEA applicants or regional centers must invest $800,000.00 USD.
• Option 2: Invest $1,050,000.00 dollars anywhere.
• All options must create 10 U.S. jobs (direct or indirect).
• Source of funds required.
• All immediate family including spouses and children under 21 may travel with the investor.
• All immediate family members and investors will receive a Green Card or Permanent Resident Status.
• Generally requires new business but may qualify if saving a troubled business.

EB1 – Aliens of Extraordinary Abilities, Professors, Multi-National Corporations

1. Extraordinary Ability (Similar to Dual Intent “O” Visa)
2. Outstanding Professor and Researcher
3. Multinational Manager or Executive (Similar to Dual Intent “L” Visa)

EB 1 – A Extraordinary Abilities in Arts, Education, Business, or Athletics

MUST Satisfy 3 of 10 Requirements below: 

• National or Internationally recognized awards.
• Membership in associations in the Field: Must demand outstanding achievement to be a member.
• Published material about in professional or major publications.
• Judging the work of others.
• Original scientific, scholarly, artistic, athletic or business related contributions.
• Artistic display or showcases.
• Leading or critical role in distinguished organizations.
• Commanding a high salary.
• Commercial success in the performing arts.

EB 1 – B Outstanding Professors and Researchers

• Must have two from the previous list above.
• Must have job offer.

EB 1 – C Multinational Manager or Executive (Similar to Dual Intent “L” Visa)

• Employed outside the U.S. by the petitioning employer for one of the last three years.
• Prior Employment by the petitioning employer must be managerial or executive position.
• Must have U.S. employer petition. Employer must have 1 year of established business in the USA (i.e. no start ups).
• No auto-petitions.

EB2 – Aliens with Advance Degrees and Exceptional Abilities 

1. Advanced Degree
2. Exceptional Ability
3. National Interest Waiver

EB2-A Advanced Degree

• Bachelors Degree, and
• Masters Degree or 5 Years Experience in Field
• Potential Job (I.E. Labor Certification Required)

EB2-B Exceptional Ability

• Degree, certificate or similar award from a college, university, school or other institution of learning to your area of exceptional ability.
• Letters documenting 10 years of experience.
• License to practice profession or certification of your profession or occupation.
• Recognition for your achievements and significant contributions to your industry by your peers, government, professional or business organizations.
• Other evidence may also be considered.

EB2-C National Interest Waiver

• At least two from the previous list. See EB2 Exceptional Ability.
• Must demonstrate that the work will be in the National Interest of the United States. This qualifies the person to self-petition and avoids the need for a labor certification filed by an employer. Hence no job required to apply. Applicant can complete labor certification directly with USCIS instead of department of labor.
• Usually granted to those having exceptional ability.
• Also See Schedule A Professions by DOL including: physical therapist and professional nurses. Recently pilots and dentist are also being discussed as professions in shortage.

EB3 – Un-Skilled Workers

1. Skilled Workers
2. Professionals
3. Unskilled Workers

EB3-A Skilled Workers

• Two (2) years of job experience or training.
• Labor certification indicating that the work sought cannot be completed by workers available in the United States.
• Labor certification and a permanent full-time job offer required.

EB3-B Professionals

• Bachelors Degree or Foreign Equivalent ~ Degree must be normal for that profession.
• Labor certification indicating that the work sought cannot be completed by workers available in the United States.
• Labor certification and a permanent full-time job offer required.

EB3-C Unskilled Workers

• Capable at the time of the petition filed by Employer, to perform unskilled labor requiring less than 2 years of training or experience that is not temporary or seasonal in nature (for this H2 visas may apply).
• Qualified U.S. workers are not available.
• Labor certification and a permanent full-time job offer required.

L1  Intercompany Transferees

• Employee must demonstrate that he or she worked for the foreign enterprise at least for 1 year in the last three years.
• Employee must be a manager, executive or otherwise an essential worker to the U.S. enterprise.
• Must be able to show capacity to remunerate or compensation the employee for at minimum one (1) year.
• Must be able to show that the foreign enterprise will continue to operate.

H1B Specialty Occupations

Generally

• Petitioner must be U.S. Employer (no independent contractors allowed).
• Employee must be coming to work temporarily in the U.S. in a specialty occupation.
• Labor Certification Application (LCA) is required to demonstrate that compensation will be at U.S. or local rate and that no jobs are unnecessarily taken from a U.S. Citizen or Legal Permanent Resident.

Specialty Occupation:

Occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified for to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation. See Kurtzban, 990-991

I130 / I-485 / DS260 – FAMILY IMMIGRATION

Stage 1: I-130 Petition

Most family immigration begins by filing the I-130 application with United States Citizenship and Immigration Services (USCIS). The I-130 can be filed by qualifying petitioner on behalf of the benefiting spouse. The qualifying relationships include a U.S. Citizen or LPR spouse petitioning for their benefiting spouse, U.S. Citizen children over 21+ petitioning for their Mother or Father, U.S. Citizen or LPR parent petitioning for their Minor Children (under 21), U.S. Citizen sibling applications or even U.S. Citizen Step-Parent applications for Minor Step-Children so long as the Step-Parent married the non U.S. spouse prior to the benefiting child turning the age of eighteen (18) years old.  Note, that the age of minor children can be frozen in time if the child qualifies under the Child Status Protection Act (CSPA).

Stage 2: I-485 or DS-260 Consular Processing

2A. If the beneficiary is inside the United States, then the goal is to file the I-485 application for Adjustment of Status (AOS). In some cases the I-130 may be filed concurrently with the I-485 application if the beneficiary immediately qualifies for Adjustment of Status (AOS). In cases where the benefiting alien is not present in the United States, the application will then be transferred to the National Visa Center (NVC). You can think of NVC, like a bridge between USCIS and the U.S. Embassy abroad. Upon receipt of the file the by the U.S. Embassy the beneficiary may then proceed to file the DS-260 to receive an immigrant visa to the United States. Upon receipt of an immigrant visa the beneficiary will enter the United States and then proceed to receive a permanent resident card or green card.

2B. Other forms will be necessary in order to qualify the I-485 or DS-260. The petitioner and/or other joint sponsor will be required to file form I-864 on behalf the beneficiary to assure that the beneficiary will not become a public charge. A “public charge” is a person who is likely to need a U.S. benefit such as food stamps, Medicaid, Medicare or government assistance program that the foreign alien is not otherwise qualified to receive. In order to satisfy the requirements of the I-864, the Petitioner or Joint Sponsors must prove that his or her income is sufficient to satisfy the national poverty guidelines defined by USCIS at I-864P. To support this proposition, the Petitioner or Joint Sponsor will be required to show three years of income, with the prior year tax return attached, in addition to any other evidence that tends to prove ownership of assets or money in the bank (i.e. bank statements). In addition to the I-864 requirements, the alien will be required to complete medical examination form I-693 to ensure that the alien is not carrying any communicable diseases that may be brought by them to the United States. The I-693 is completed by a medical doctor and must be delivered to USCIS or the Embassy in an envelope sealed by the medical doctor. Last but not least, if the beneficiary is inside the United States, he or she may qualify to apply for the I-765 work permit application, this will allow the beneficiary to work and make a living while they wait for the I-485 to be processed. Also note, that if the beneficiary is allowed to lawfully produce income pursuant to an approved I-765, they may include their own income to qualify under the I-864.

Special Note, if the benefiting alien is applying from inside the United States, and did not enter lawfully, this certainly will require the alien to file a waiver application most often on the I-601 or I601A application. This also may apply if the alien is outside the U.S. and is inadmissible to the U.S. due to prior unlawful entry or overstay, prior criminal acts, health related or other grounds of inadmissibility.

Stage 3: The Interview  

After all documents are processed as stated above, USCIS or the U.S. Embassy abroad will schedule an interview with the beneficiary. If the interview is with USCIS, the petitioning relative will be required to appear. The same may not be required by the U.S. Embassy because they understand that the Petitioner may still be inside the United States. A typical interview is to confirm the relationship between the Petitioner and Beneficiary, this is most common in marriage cases. Original documentation will be required at the interview such as Passport, Driver License or Government ID Card, Birth Certificates, Marriage Certificates, and any other government issued identification.  If your survived these three stages, congratulations you are now Legal Permanent Resident (LPR) and Welcome to the United States!

N400 / N600 NATURALIZATION AND CITIZENSHIP APPLICATIONS 

Most people apply for U.S. Citizenship by using the N-400 application. However, some people may qualify under the N-600. To know the difference please contact us for a consultation. In this section, we will only discuss the N-400.

General Requirements to Become US Citizen:

1. At minimum must be a Legal Permanent Resident for five (5) years. If you obtained LPR status by marriage you may qualify after three (3) years.
2. Good Moral Character (Generally you must not owe taxes or at least have a payment plan, you must not owe child support, and you must not have any significant criminal history).
3. Passing Civics and U.S. History Examination
4. English Requirement (may be waived if you are certain age and certain number of years in LPR status)
5. Travel History (must not have spent more than 180 days continuously outside the U.S. or 30 months outside the U.S. in aggregate for the last five years)

REMOVAL OR DEPORTATION

In the United States unlawfully, then you may have already been served with the Notice to Appear (NTA). The NTA starts every removal or deportation case. Removal is for individuals that typically entered unlawfully or overstayed and did not legalize their status. Deportation is for Legal Permanent Residents that are now placed in deportation proceedings because their LPR or Green Card status is being revoked. Typically, a Legal Permanent Resident is placed in removal proceedings when they commit a crime. The seriousness of that crime will often dictate if you will have potential defenses or not. If the crime, qualifies under the aggravated felony statute INA 101 (a) 43 the deportation may become indefensible. However, do not lose home as the Supreme Court of the United States has ruled that the definitions under INA 101 (a) (43) have to be taken case by case and not simply by looking at the charges and conviction(s).

Defenses May Apply in Your Case

In deportation cases, waivers under INA 212 (c) and INA 212 (h) may work to waive the criminal offense committed and protect your Legal Permanent Resident (LPR) status. Other defenses available in deportation cases, include the 42A Cancelation of Removal application. General requirements include at least 7 years of continuous presence, 5 years of LPR status, and not be convicted of an aggravated felony.

In removal cases, 42 B Cancelation of Removal generally requires 10 years of continuous presence, good moral character and extreme & unusual hardship to U.S. qualifying relative (typically a severe medical condition). Other defenses include I-589 Withholding of Removal and I-589 Asylum applications if timely filed. Other defenses would include any immigration relief that qualifies the alien for immigration relief, such as a qualifying family petition.

Please consult with a lawyer you to help formulate your defenses.

FREQUENTLY ASKED QUESTIONS:

REMOVAL AND DEPORTATION

Q. How do people end up in immigration custody?

A. Aside from ICE picking them up in a raid or by knocking on their door, typical immigration custody begins after someone is arrested for a crime. It can be as simple as a criminal traffic citation for “No License.”

Q. What should someone does if arrested and they have an immigration issue?
A. The best bet to avoid immigration custody is to pay the bond before an immigration hold can be placed. This does not always work but it is the best bet.

Q. What happens if they don’t pay the bond, or a hold is placed before they can pay the bond?

A. Then they will need a lawyer for two cases. One for their criminal case which can be State or Federal jurisdiction. And one for their immigration case. The immigration case is exclusive to the jurisdiction of the Department of Justice, Executive Office of Immigration Review (EOIR).

Q. Can the person obtain a bond from immigration custody?

A. In some cases yes, but if the criminal offense is violent in nature, it is doubtful that the immigration judge will grant a bond.

Q. So what now, if the person is in immigration custody and has no bond, what happens next?

A. This depends on several factors, such as: (1) Did the person make an admission? (2) Does the underlying crime disqualify potential defenses? (3) What is the disposition of the criminal case?

Q. What can the person do to defend the deportation / removal case?

A. That depends on what defenses are available to the person, and which depends on factors such as: (1) What is their current legal status? Resident or Entered Without Inspection (EWI) (2) What are their familiar ties to the US? (3) How long they have been in the US? (4) Do family members hold LPR or USC status? (5) Do any LPR or USC family members have medical conditions? (6) What is the result of the criminal case?

I-589 POLITICAL ASYLUMS

The I-589 Application for Asylum can be filed as an offensive or defensive application. General requirements to file for asylum includes filing inside of 366 days since arriving in the United States (a/k/a the “year and a day rule.”) Asylum can also be requested at the border, in such cases a Credible Fear Interview will be conducted by an immigration officer. If a credible fear is found, the asylum applicant may be paroled into the United States pending an adjudicative hearing on the asylum request. In Florida, offensive asylum applications are typically adjudicated in Miami, Florida. If denied, the application then gets referred to immigration court, typically within the jurisdiction closes to the applicant. If the applicant lives in Central Florida, they are often referred to the Orlando Immigration Court.

In Immigration Court, the I-589 Application for Asylum or Withholding of Removal may also be filed as a defensive application. The same “year and a day rule” when seeking asylum in Immigration Court applies. If this requirement is not met, the applicant may still seek relief under Withholding for Removal. Although different standards apply in Asylum and Withholding of Removal, they are very similar to one another. For example, both must show that the applicant suffered from some type of government persecution on the basis race, religion, nationality, political opinion or membership of a particular social group. In some cases, the applicant may seek protection under the Convention Against Torture (CAT) or other international treaties.

Asylum should be filed ONLY has a last resort when there is no other immigration relief available. Asylum’s are difficult to achieve and the wait list is very long, lasting years.