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Our law firm is dedicated to the practice of US Immigration Law. We service clients world-wide in all immigration matters, ranging from employment and family petitions to deportation defense. We can represent you no matter where you live.
We also represent clients in divorce proceedings and real estate matters in the state of Illinois.
What sets our firm apart is that our staff has very personal experience with immigration law and its enforcement. We understand and care about your problems deeply. Our prices are reasonable and we are devoted to help you without any delays and unnecessary costs.
As a client-centered law firm, we have flexible hours, including Saturday appointments. We accept Visa, Master and Discover credit cards, and we have staff that speaks fluent Bulgarian, Russian and German for those clients who speak English as a second language.
Нашата адвокатска кантора обслужва клиенти от цял свят по всички въпроси свързани с имиграция в САЩ: работни и семейни петиции, депортация, гражданство и др. Нашата фирма представлява и клиенти в бракоразводни дела и сделки с недвижимо имущество на територията на щата Илинойс.
Това, което отличава нашата кантора от останалите фирми практикуващи имиграционно право е, че всички наши служители имат личен богат житейски опит с имиграционните власти на САЩ. Ние сме дълбоко съпричастни към проблемите на нашите клиенти и се стремим да ги разрешим своевременно и без ненужни разходи. Кантората има гъвкаво работно време, което дава възможност за насрочване на консултации включително и в събота. Приемаме кредитни карти - Visa, Master Card или Discover. Нашият персонал владее български, руски и немски език, за тези клиенти, които говорят английски като втори език.
Real Estate Law
- Nonimmigrant Visa Categories
- Immigrant Visa Categories / Green Card / Permanent Residency
- Asylum and Cancellation of Removal
Nonimmigrant Visa Categories
The duration and purpose are determined by the type of non-immigrant visa that the person holds. Most common nonimmigrant visas (for individuals present in the U.S. for a limited time and for a limited purpose:
- B-1 or B-2 Visitor Visa
- H-1B Temporary Worker Visa
- H-1C Nonimmigrant Visa for Nurses
- H-2A or H-2B Skilled and Unskilled Worker Visa
- H-3 Temporary Trainee Visa
- L-1A or L-1B Intra-Company Transferee Visa
- E-1 or E-2 Investor/Trader Visa
- J-1 Exchange Visitor Visa
- F or M Student Visa
- O-1 Extraordinary Ability Visa
- P-1, P-2 or P-3 Visas for Entertainers
- NAFTA Visa
Visitor Visa (B-1/B-2)top ^
Business visitors (B-1) and visitors for pleasure (B-2) must at least satisfy the following:
- The visitor intends to enter the United States for a limited period of time at the end of which he or she will depart the country;
- The visitor has a foreign residence that he or she has no intent to abandon;
- The visitor has sufficient financial means to avoid being involved in any type of unauthorized employment; and,
- The visitor will be involved only in legitimate activities compatible with the B-1 (business) or B-2 (tourist) visa.
Business visitors or visitors or tourists are admitted for the duration of their intended activity, up to six months. Extensions may be available.
The United States allows nationals from certain countries to enter the U.S. without first obtaining a visa from a U.S. embassy. All conditions of the B-1/B-2 Visa still apply, but the entry is limited to 90 days and generally can be neither extended nor changed to another non-immigrant category.
The Temporary Professional Workers (H-1B)top ^
The H-1B Visa is a temporary work visa available for persons qualified as professionals who are hired to work in specialty professional occupations. This visa is popular because the term "professionals" has been defined to include many persons with the equivalent of a Bachelor's Degrees. It is also available to individuals without a degree, as long as they have certain experience in the field and the offered position is professional in nature. The petitioner (employer) has to demonstrate to the USCIS that the duties to be performed by the foreign national require a minimum of a four-year degree or its equivalent in a specific field. An advantage of this visa is that it is a dual intent visa (the foreign national is not required to prove they have foreign residence that they do not intend to abandon). It can be initially approved for three years, and then renewed for an additional three year period.
Nonimmigrant visas for Nurses (H-1C)top ^
The Nursing Relief for Disadvantage Areas Act of 1999 (NRDAA) established the H-1C program to reduce the shortage of qualified nurses in health professional shortage areas. The H-1C program has been authorized until December 20, 2009. It allows foreign nurses to come to the U.S. temporarily to perform services as a registered nurse in a health professional shortage area as determined by the U.S. Department of Labor. Only 500 nurses can be granted H-1C status in a fiscal year nationally and there are also numerical limitations for each state based on the state’s population.
The U.S. Employer must meet strict criteria to be eligible to file a petition under H-1C Program. On the other hand, to be eligible for an H-1C visa, the foreign nurse must:
- Have an unrestricted nursing license in the country where the nursing education was obtained, or have received a nursing education in the U.S.;
- Be authorized by the appropriate U.S. State Board of Nursing to practice within the state:
- Have passed the examination given by the Commission on Graduates for Foreign Nursing Schools (CGFNS), or
- Have a full and unrestricted license to practice as an RN in the state where the RN will work, or
- Have a full and unrestricted RN’s license in any state and have received temporary authorization to practice as an RN in the state where he/she will work;
- Have been fully qualified and eligible under the laws governing the place where the RN was to work to practice as an RN immediately upon admission to the U.S., and been authorized under such laws to be employed by the hospital; and
- Must obtain a visa screen.
Temporary Skilled and Unskilled Workers (H-2A and H-2B)top ^
The H-2 Visa category includes professionals who might not otherwise qualify for the H-1 Visa, as well as skilled and unskilled workers. It covers aliens who are coming temporarily to the United States to occupy a temporary or seasonal position, provided that the Department of Labor certifies that there are no qualified U.S. workers available for the position.
Temporary Trainees (H-3 visa)top ^
H-3 visa allows for training of an individual by a U.S. company. The petitioning entity providing the training must provide the USCIS with details of the training, together with an explanation as to why such training is not available in the alien's country. The application should demonstrate that any employment will be incidental to the training. The H-3 status may be granted for up to two years.
Intra-Company Transferees (L-1A or L-1B Visas)top ^
The L is used by multi-national corporations who wish to transfer key foreign employees to the United States or foreign entities that wish to send employees to the US to open a new branch office or subsidiary. A U.S. entity may petition for an L visa on behalf of an foreign national who has been employed for one continuous year of the three years preceding the application in an organization with a qualifying relationship to the U.S. entity. The foreign national must come to the U.S. to occupy a managerial or executive position (L-1A), or a position utilizing specialized knowledge (L-1B). Managerial duties may entail managing others who hold supervisory positions or professionals. In addition, a manager may also manage an essential function of the entity, and not necessarily other employees. Executive duties entail establishing goals and policies, exercising discretion over the corporate decision making process, etc. over the entity. An L-1B is based upon specialized knowledge, which is generally satisfied if the alien has knowledge not readily possessed by others regarding the entity's products and their applications in the international market, or has an advanced level of knowledge of processes and procedures of the company. The spouse and minor children of the L non-immigrant are permitted to accompany the alien as dependants with L-2 visa. L visa holders are allowed "dual intent," meaning they are not required to prove they have foreign residence that they do not intend to abandon.
Some of the most important issues that come up while petitioning for an L visa are: the previous employment of the alien, the corporate relationship between the U.S. and the foreign entity, and the classification of the alien's intended employment in the U.S. and previously with the foreign entity as either a manager, executive, or an employee with specialized knowledge.
In addition, major U.S. corporate entities having at least 1,000 employees and annual sales of at least $25 million, who are engaged in commerce or trade and have previously applied for at least ten L visas within a preceding 12-month period may qualify for a "blanket" L-1 petition. This means that there is no need to submit corporate information, entity relationships, etc. for each alien, saving a great deal of time and expense.
Canadians applying for L visa may utilize the expedited process provided by the North American Free Trade Agreement, under which a petition may be presented at most border crossings and airports where, typically, it is adjudicated on the same day.
Treaty Traders and Investors (E-1 or E-2 visas)top ^
Treaty Traders are classified as E-1, while Treaty Investors are classified as E-2. The E visa is available generally only when a treaty of trade and commerce exists between the United States and the foreign country. The E visa allows investors, owners, managers, and employees of foreign businesses to work in the United States, provided that they are working in an enterprise which is either involved in trade between the United States and a foreign country or that represents a major investment by the individual or foreign company in the United States. The enterprise employees brought in under the E Visa classification must be of the same nationality as the foreign country. In the case of private companies, the majority of the enterprise's owners must be citizens of the foreign country. In the case of publicly traded entities, the location of the principal stock exchange where their shares are traded normally reflects the citizenship of the company.
Applicants for E-1 Visa (traders) must show that the enterprise is engaged in substantial trade between the U.S. and the foreign country, and that said trade is the principal activity of the enterprise. Applicants for E-2 Visa (investors) must show that they are involved in an active, substantial investment in the United States, where the investor is at risk for losing his investment. Applications under either category require substantial documentation.
E visas are generally granted for a period of five years, with two year status increments. The E visa can be renewed indefinitely.
Exchange Visitors (J-1 visa)top ^
J-1 status, allows aliens to enter the United States to participate in exchange visitor programs which will provide them with training and experience in various fields. The applicant for a J-1 visa must be sponsored by a designated exchange visitor program. The policy is based on the 1960 Mutual Educational and Cultural Exchange Act.
Spouses and children of J-1 visa holders are allowed to enter the United States with J-2 Visas. Dependents are allowed to work, subject to certain restrictions. J applicants have to prove to the U.S. consulate that they have a foreign residence that they do not intend to abandon--in other words, J exchange visitors are not entitled to a dual intent. Often, J-1 visitors are subjects to the two-year foreign residency requirement and require a waiver. Application of the requirement depends on the individual's country of origin and the skills of the individual at the time of application.
Students (F and M visas)top ^
Foreign students may be granted F or M visas to study in the United States. This allows them to remain in the U.S. until completion of their studies.
As holders of student status, typically they are allowed to apply for employment authorization to perform practical training, both prior to and/or after graduation. An individual may hold up to one year of Curricular Practical Training during school, and one year of Optional Practical Training after graduation. Typically, the employment must be related to the students' studies and the application for employment authorization must be filed after the student has been already in an F-1 student status for at least nine months.
Extraordinary abilities (O visa)top ^
O-1A visas are for individuals who have extraordinary ability in Science, Education, Business or Athletics. O-1B visas are for individuals who have extraordinary ability in the Motion Picture and Television industry. Visas are available to the O-1 visa holder’s support staff (O-2), as well as for the O-1 visa holder’s spouse and children (O-3). There is currently no annual cap on O visas. The O visa is a “dual intent” visa, meaning that a visa will not be denied simply because an individual has intentions to become a permanent resident.
The O petition has to be filed by a U.S. employer or U.S. agent, manager, concert venue, or other sponsor. The petition has to be supplemented by the following evidence:
- A written advisory opinion from a peer group (including labor organizations) or a person designated by the group with expertise in the alien's area of ability which describes the person’s ability/achievements in the field and the duties to be performed;
- A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed;
- If the events will take place in multiple areas, an itinerary or schedule must be submitted which sets forth the dates and locations of the events;
- Evidence that the alien has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least three of the following:
- Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
- Membership in organization which requires outstanding achievement;
- Published material in professional or major trade publications, newspapers or other major media about the person and his/her work in the field for which classification is sought;
- Original scientific, scholarly, or business-related contributions of major significance in the field;
- Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought;
- A high salary or other remuneration for services as evidenced by contracts or other reliable evidence;
- Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought; or,
- Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
If the above standards do not readily apply to the person’s occupation, the petitioner may submit comparable evidence in order to establish the alien's eligibility.
Athletes can also apply for P-1 visa when they are competing individually or as part of a team.
Athletes, Artists and Entertainers (P visas)top ^
The P-1 visa is given to athletes individually or as part of a group or team that is “internationally recognized” (P-1A) or a person who performs with or is an integral part of on entertainment group that has been recognized internationally as outstanding in the field for a substantial of time (P-1B). The performers need to prove a sustained and substantial relationship with the entertainment group over a period of at least one year. The P-2 visa is given to artists and entertainers entering the U.S. for a reciprocal exchange program between a foreign-based and a US-based organization. Artists and entertainers, including groups who will perform under a program that is culturally unique, are covered by P-3 visa.
Canadian Professionals under NAFTAtop ^
The North American Free Trade Agreement ("NAFTA") allows an expedited procedure for certain Canadian and Mexican professionals to enter the United States for a one-year duration, which can be renewed indefinitely. The intended U.S. activity must be covered by what is called Schedule 2, and the alien must possess the necessary credentials indicated on said schedule. There are several advantages for Canadians or Mexicans to utilize the trade NAFTA Visa. First, the process is extremely expedited, and once the petition is prepared with the supporting documents, the trade NAFTA Visa can be given at the border after a review that may sometimes last less than an hour. There is no outside limit for the number of years an alien can remain in trade NAFTA status, and there is no annual ceiling on the number of NAFTA visas issued.
Mexicans are also covered by the North American Free Trade Agreement, but on a much more restrictive basis. There are a number of limitations; for example, since the application has to be submitted to Lincoln, Nebraska, it cannot be processed in an expedited manner at the border.
Other nonimmigrant visastop ^
There are other miscellaneous categories, including diplomats and NATO personnel, aliens in transit, crewmen, representatives of international organizations, media representatives, religious workers, alien witnesses, victims of certain crimes, etc.
Immigrant Visa Categories / Green Card / Permanent Residency
The immigrant visa categories allow an alien to live in the US permanently. However, restrictions apply when it comes to travel periods outside the United States. Also, there are circumstances under which the permanent residency (green card) can be revoked.
- Employment Based Immigration
- EB-1 Visa - Priority Workers
- EB-2 Visa - Advanced Degree Professionals and Aliens of Exceptional Ability
- EB-3 Visa - Professionals, Skilled Workers and Other Workers
- EB-4 Visa - Special Immigrant Religious Worker
- EB-5 Visa - Investors
- Permanent Labor Certification
- National Interest Waiver
- Immigrant Visas for Registered Nurses and Physical Therapists
- Family Based Immigration (Immigration through a Family Member)
- Diversity Visa Program (Green Card Lottery)
Employment Based Immigration
EB-1 Visa - Priority Workerstop ^
The EB-1 category covers three groups: aliens of extraordinary ability, outstanding professors and researchers and international managers and executives. The EB-1 category does not require labor certification, meaning the petitioner does NOT need to prove that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment. This makes the time spent processing an EB-1 application much shorter than for categories that do require a labor certification.
Aliens of Extraordinary Ability do not need an employer to file the petition for them. They can self-petition by demonstrating that (i) the alien has received a major, internationally recognized award such as a Nobel Prize or an Academy Award OR (ii) the alien has to show three of the following types of evidence:
- Receipt of lesser national or international prizes or awards for excellence in their field of endeavor
- Membership in associations in the field of endeavor that require outstanding achievements of their members
- Published material about the alien and his work in professional journals, trade publications, or the major media
- Participation, either in a group or alone, as a judge of others in the same or a similar field
- Original scientific, scholarly, or artistic contributions of major significance in the field of endeavor
- Authorship of scholarly articles in the field, published in professional journals or the major media
- Display of the alien's work at artistic exhibitions or showcases in more than one country
- Performance in a lead, starring, or critical role for organizations with a distinguished reputation
- Commanding a high salary compared to others in the field
- Commercial success in the performing arts, as shown by box office receipts and sales
USCIS has also included a catch-all category allowing submission of other comparable evidence.
Outstanding Professors and Researchers – to meet the requirements of this category, the alien has to submit the following evidence:
- International recognition as outstanding in a specific academic field.
- At least three years teaching or research in the field. The teaching or research experience can be gained while in pursuit of an advanced degree, but only if the alien had full responsibility for the courses taught, or the research is recognized as outstanding.
- An offer of employment (for a tenure or tenure-track teaching position or a comparable research position, OR a research position with no fixed term in a position where the employee would generally have the expectation of permanent employment, OR a research position with a private company if the employer has at least three full time researchers and has documented research accomplishments in the field)
Unlike aliens in the extraordinary ability subcategory, aliens in the outstanding professor or researcher subcategory must have a job offer.
Multinational Executives and Manager - To qualify as an executive or manager transferred to the U.S., the alien must have worked for an affiliate of the Petitioner for at least one year of the previous three. This does not need to have been completed in one stretch, but can be aggregated. This work must be in an executive or managerial capacity. Also, the alien must be coming to the U.S. to work in an executive or managerial capacity. If the alien is already in the U.S., the required one year of employment in the past three will be determined by looking at the three years prior to the alien's transfer to the U.S. The U.S. business must have been established for at least one year before filing the petition. This category is very similar to the L-1 nonimmigrant category. There are a few differences. EB-1s are only available to managers and executives, and not workers with specialized knowledge. Second, unlike L-1's, the US branch of the business must have been in operation for one year before petitioning for an immigrant worker.
EB-2 Visa - Advanced Degree Professionals and Aliens of Exceptional Abilitytop ^
The second preference category of employment-based immigration includes: members of professions holding advanced degrees and aliens of exceptional ability. Also included in this category are physicians intending to practice medicine in underserved areas and Soviet scientists. As a general rule, a labor certification (see Permanent Labor Certification) is required, although in some cases a national interest waiver is available. See also Visa Bulletin section for more information on visa availability.
Members of the Professions with Advanced Degrees - Advanced degree is any degree above a baccalaureate degree. However, this category is also for individuals with a baccalaureate degree and at least 5 years progressive experience in the professions. The combination of a baccalaureate degree and 5 years experience in the professions is deemed equivalent to a Master's degree. But, if a PhD is required for the particular profession, the alien must possess the doctoral degree (cannot use equivalent work experience).
Aliens of Exceptional Ability in the sciences, arts or business - This subcategory includes individuals who possess a level of expertise significantly above that ordinarily encountered in the sciences, arts or business. For the purposes of this category, athletics are to be considered an art. Proof of exceptional ability will include any three of the following:
- Degree relating to area of exceptional ability
- Letter from current or former employer/s showing at least 10 years experience
- License to practice profession if it is required
- Evidence that the individual has commanded a salary or remuneration demonstrating exceptional ability
- Membership in professional association/s
- Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organization.
If any of the above items are not applicable, submission of other comparable evidence will be allowed. Such evidence may include expert opinions letters.
In the EB-2 category, if you are a worker with exceptional ability in the sciences, arts, or business, a labor certification is not required if the alien can demonstrate that granting the petition is in the national interest and files a National Interest Waiver application (“NIW”). There are two kinds of NIW applications available: the standard case and the physician NIW. See section on National Interest Waiver.
Foreign physicians may obtain immigrant visas (“green cards”) through EB-2 category by filing a labor certification. Available through the EB-2 category is the Physician National Interest Waiver which relieves petitioners from the labor certification process. NIW green cards are available only to physicians who agree to work full time in a designated health professional shortage area or in VA hospital and where a federal agency or state department of public health has determined that the physician’s work is in the public interest. Physicians who entered the U.S. before Jan 9, 1978 and have been practicing since that time may obtain a green card as a Special Immigrant Physician.
EB-3 Visa - Professionals, Skilled Workers and Other Workerstop ^
Petitions filed in the EB-3 category require a permanent, full-time job offer and a labor certification (see Permanent Labor Certification). Eligibility requirements for the EB-3 classification are less stringent, but there are no exceptions on the labor certification requirement. The EB-3 category is currently backlogged.
Professional. Under this category, a professional is a person who has a baccalaureate degree (or foreign equivalent) and is a member of the professions. Unlike the H-1B nonimmigrant category, one is not able to make up for a lack of education through experience. Members of the professions include, but are not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries, as well as any occupations for which a U.S. baccalaureate degree (or foreign equivalent) is the minimum requirement for entry into the occupation.
Skilled worker. For a person to qualify as a skilled worker, the position being offered must require at least two years training or work experience. The alien must possess the required training or experience, but simply because the alien has two years of training and experience does not make it a skilled position if it does not otherwise require two years of training and experience. Whether a position involves skilled labor is determined by the U.S. Department of Labor. Because the “other worker” category is more backlogged than the “skilled worker” category, it is very important that the employer demonstrate that the position is one requiring at least two years training or work experience.
Other workers. An “other worker” is a person filling a position that requires less than two years training or experience to perform. Relevant post-secondary education may be considered as training for the purposes of this provision. Because there is an annual limit of only 10,000 visas in this subcategory, regardless of how many are available in the entire EB-3 category, there are extreme backlogs in visa numbers for this category. See Visa Bulletin section for more information on visa availability.
EB-4 Visa - Special Immigrant Religious Workertop ^
There are several different subcategories within the fourth preference and not all of them obtain a green card through employment. The most common special immigrant is the religious worker. Special immigrant religious workers will obtain a green card through employment. A permanent, full-time job offer is required but a labor certification is not.
To qualify as a special immigrant religious worker, the alien:
- Must have been a member of the religious denomination for at least 2 years immediately preceding the time of application
- Must be seeking to enter the U.S. solely to work as a minister or religious vocation or occupation which relates to traditional religious functions
- Must have worked in such vocation, professional work or other work continuously for at least a 2 year period (voluntary service does not meet this requirement). The work must be continuous, but need not be full-time. It does not matter if the work was in or outside of the U.S.
For the purpose of this category, the religious worker must work for a bona fide, non-profit, religious organization or a bona fide organization which is affiliated with the religious denomination. The organization does not need to have ever sought tax exempt status, but need only prove that it is eligible for such status. A religious denomination is defined as "a religious group or community of believers having some form of ecclesiastical government, a creed or statement of faith, some form of worship, a formal or informal code of doctrine and discipline, religious services and ceremonies, established places or religious worship, religious congregations, or comparable indication of a bona fide religious denomination."
There are three classes of religious workers - ministers, professionals and other workers in religious vocations.
Ministers are people authorized by a recognized religious denomination to conduct religious worship services and to perform other duties usually performed by authorized members of the clergy. It does not include lay persons who participate in services. A minister must be ordained to conduct religious worship and perform other duties performed by an ordained pastor/clergyman.
Professionals are those working in a religious vocation or occupation for which the minimum of a Bachelor’s degree (or foreign equivalent) is required. A religious occupation is an activity which relates to traditional religious functions such as liturgical workers, religious instructors or counselors. It does not include support staff such as clerks or maintenance workers. The USCIS is now requiring that a person in a religious occupation must also have formal training established by the governing body of the denomination.
Other workers in religious vacation. A religious vocation is a calling to religious life with a demonstrable commitment to that life such as taking vows. Typical in this category would be monks, nuns and religious brothers and sisters.
EB-5 Visa - Investorstop ^
The fifth preference category of employment-based immigration is for immigrants seeking to invest substantial sums in a new business in the U.S. that will create full time employment for at least ten qualifying U.S. citizen or immigrant workers. The minimum investment is $1 million of capital, which may be reduced to $500,000 if the investment is made in a "targeted employment area".
There are three basic requirements for an EB-5 visa:
First, the individual must establish a new commercial enterprise or invest in an existing business that was created or restructured after November 19, 1990 (with some exceptions);
Second, the alien must have invested $1 million ($500,000 in some cases – “targeted employment areas”) in the business; and
Third, the business must create full-time employment for at least 10 US workers.
The law requires an investor-petitioner to have invested in or be in the process of investing the required capital. “Targeted employment areas" for the purpose of the lower investment requirement ($500,000) are rural areas or areas which have experienced unemployment of at least 150 percent of the national average rate. The assessment of whether the investment is in a targeted employment area is based on statistical information relating to the time of investment and the location where the enterprise is principally doing business.
To "invest" means to contribute equity capital to the enterprise. Loans of capital by the investor to the enterprise do not qualify as an appropriate investment. The investor cannot receive any bond, note, or other debt arrangement from the enterprise in exchange for the contribution of capital. "Capital" may include cash and cash equivalents, equipment, inventory, and other tangible property.
The USCIS also requires proof that the capital invested is "at risk." USCIS focuses on actual and intended uses of capital to confirm that it will be used for job creation and profit-generating activity. Therefore, USCIS requires more than a deposit of funds into a business account; it also requires evidence of the actual undertaking of business activity. Use of capital for partnership expenses and reserve accounts unrelated to job creation is insufficient.
An investor petitioner should present evidence that traces capital from the petitioner directly to the enterprise. Also the petitioner needs to provide evidence to prove that the source of funds was procured by legal means. Usually investors have to submit the past five years of income tax returns and financial statements to prove they have sufficient lawful sources for the capital invested. The applicant may receive a gift of the funds, provided the proper gift taxes are paid, if required by law.
Multiple investors may establish a new commercial enterprise which can be the basis for the EB-5 classification. However, each investor applying for the classification must meet the requirements for the EB-5 classification separately. For example, each investor must create 10 jobs for US workers.
An EB-5 investor must be engaged in the management of enterprise either through day-to-day managerial control or through policy formulation. A purely passive role is not permitted. Prior to filing the petition, time is required to conduct due diligence, make the investment, and prepare the documentation in support of the petition.
The EB-5 initial resident status is "conditional" for two years. In order to become a lawful permanent resident, eligible investors must file Petition by Entrepreneur to Remove Conditions, with the appropriate USCIS Regional Service Center within 90 days before the second anniversary of being admitted to the U.S. as a conditional permanent resident. The petition should be granted if the investor demonstrates that he/she invested or was actively in the process of investing the requisite capital; maintained the investment throughout the two-year period of conditional residence; and the investment created the requisite employment.
Permanent Labor Certificationtop ^
A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the USCIS the employer must obtain an approved labor certification request from the DOL's Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.
After March 28 2005 the ETA implemented a new re-engineered permanent labor certification program: Program Electronic Review Management (commonly referred to as PERM). As of that date, applications for permanent labor certification are filed under the PERM process at the appropriate National Processing Center.
The qualifying criteria are:
- The employer must hire the foreign worker as a full-time employee
- There must be a bona fide job opening available to U.S. workers
- Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker's qualifications. In addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity
- The employer must pay at least the prevailing wage for the occupation in the area of intended employment
National Interest Waivertop ^
The National Interest Waiver (NIW) is part of the second employment-based category (EB-2) for aliens of exceptional ability in sciences, arts or business and advanced degreed professionals (M.A., M.S., M.E., M.D. or Ph.D.). An alien may apply for permanent residence status (Green Card) and seek a waiver of the offer of employment by establishing that his or her admission to permanent residence would be in the national interest. A person who qualifies for the National Interest Waiver is deemed to be of such value to the United States that he/she is not required to process a labor certification or have a job offer.
The NIW is a good option for those who do not wish to wait several years for labor certification and/or do not wish to be tied to a specific employer during labor certification. The NIW applicant sponsors him or herself and is not required to have a job.
The National Interest Waiver also applies to physicians. Physicians who agree to work full time in a designated health professional shortage area or in VA hospital and where a federal agency or state department of public health has determined that the physician’s work is in the public interest for an aggregate of five years (not including time in J1 visa status) can obtain an NIW green card.
In order to be considered an alien of exceptional ability, the USCIS regulations require that at least three of the following types of evidence be established:
- An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
- Evidence in the form of letters from current or former employers showing that the alien has at least ten years of full-time experience in the occupation for which he or she is sought
- A license to practice the profession or certification for a particular profession or occupation
- Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability
- Evidence of membership in professional associations
- Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business associations.
In addition to the requirements mentioned above, the USCIS will consider the following factors in evaluating a request for National Interest Waiver:
- Whether the alien seeks employment in an area of substantial intrinsic merit. Basically, is an important national goal involved in the alien's particular field of endeavor?
- Whether the proposed benefit will be national in scope. Merely serving a regional or local interest is not sufficient. The emphasis of this factor is on the existence of a national goal that the alien will promote.
- Whether the national interest would be adversely affected if a labor certification would be required for the alien. The first step in meeting this test is establishing that the alien possesses unique knowledge, abilities, or experience that set him or her apart from other professionals in the field. The second step is establishing that the applicant will use these unique attributes in an activity that will significantly benefit her/his field of endeavor.
Immigrant Visas for Registered Nurses and Physical Therapiststop ^
Registered Nurses (RNs) and physical therapists are treated in a special way by U.S. immigration laws. Some requirements highly favor foreign nurses; however, others impose additional documentation and examination requirements on RNs. Unlike many of the other employment based immigrant visa categories, the labor certification requirement does not apply to RNs and licensed physical therapists. This is because the occupations are “Schedule A” occupations, meaning they have already been certified by the Department of Labor. This makes the process much shorter than for categories that do require a labor certification. However, nurses and physical therapists fit into a green card category with a limited quota and backlogs are normal, especially for nationals of the Philippines, India and China. It is also important to underline that this pre-certification applies only to “Professional Nurses”. Professional Nursing is defined as a course of study in professional nursing resulting in a diploma, certificate, baccalaureate degree, or associate degree. More specifically, an acceptable course of study for professional nurses generally includes theory and practice in clinical areas such as obstetrics, surgery, pediatrics, psychiatry, and medicine. Whatever training the nurse has received should result in licensure in the country in which the training occurred. This coursework may have been completed at a U.S. nursing school or an approved foreign nursing program. For an immigrant visa, it is not required that a nurse have a bachelor’s degree in nursing, only that he or she completed a professional program in nursing and have subsequently been licensed. “Schedule A” is not available to Licensed Practical Nurses, Nurse Assistants, or other nursing aides.
For a physical therapist to obtain permanent residency through the “Schedule A” category, the applicant must meet the following requirements:
- He or she must have a bachelor’s degree in physical therapy or the equivalent; and
- Have a license to practice in his or her state of intended employment; or
- Have a letter from a state licensing agency stating that the applicant is qualified to take the state licensing examination.
Family Based Immigration (through a Family Member)top ^
A lawful permanent resident (LPR) is a foreign national who has been granted the privilege of permanently living and working in the United States. In order to become an LPR based upon a familial relationship with a U.S. Citizen or lawful permanent resident, there is a multi-step process.
First, the USCIS must approve an immigrant visa petition, filed by the U.S. Citizen or LPR relative (sponsor).
Second, the Department of State must determine if an immigrant visa number is immediately available to the foreign national, even if he/she is already in the United States. When an immigrant visa number becomes available, it means that the individual can apply to have one of the immigrant visa numbers assigned to him/her. Information pertaining to visa availability can be found in the Department of State's Visa Bulletin.
Third, if the individual is already in the U.S., he/she may apply for adjustment of his/her status to that of a lawful permanent resident after a visa number becomes available. If the individual is outside the U.S. when an immigrant visa number becomes available, he/she will be contacted by the Department of State’s National Visa Center to complete the processing.
Categories of aliens eligible for lawful permanent residence based on a family relationship:
- The immediate relatives of U.S. citizens, which includes parents, spouses and unmarried children under the age of 21. They do not have to wait for an immigrant visa number to become available once the visa petition filed for them is approved by the USCIS. Generally they qualify for adjustment of status in the United States even if they have violated their status, as long as they can prove that they have entered legally in the United States (exceptions apply).
The relatives in the remaining categories must wait for a visa number to become available according to the following preferences:
- First Preference: Unmarried, adult sons and daughters of U.S. citizens. Adult means 21 years of age or older.
- Second Preference: Spouses of lawful permanent residents, their unmarried children (under twenty-one), and the unmarried sons and daughters of lawful permanent residents.
- Third Preference: Married sons and daughters of U.S. citizens.
- Fourth Preference: Brothers and sisters of adult U.S. citizens.
See Visa Bulletin section for more information on visa availability.
Diversity Visa Program (Green Card Lottery)top ^
Asylum and Cancellation of Removal
Asylum and Refugee Statustop ^
Asylum may be granted to people who are already in the United States and are unable or unwilling to return to their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. If an applicant is granted asylum, he or she will be allowed to live and work in the United States. The applicant will also be able to apply for permanent resident status one year after he or she is granted asylum. To be eligible for asylum in the United States, one must ask for asylum at a port-of-entry (airport, seaport or border crossing), or file an application within one year of arrival in the United States; however, there is an exception in rear circumstances when an applicant may request asylum later than one year of arrival in the US. Eligibility for asylum is based on information provided on the application and during an interview with an Asylum Officer or Immigration Judge. If an applicant does not qualify for asylum, but fears being tortured upon returning to their homeland, they can apply for consideration under the Convention Against Torture.
Asylum status and refugee status differ only in the place where a person asks for the status. Asylum is asked for in the United States; refugee status is asked for outside of the United States. However, all people who are granted asylum must meet the definition of a refugee. Refugee status may be granted to people who meet the definition of a refugee, but are outside of the United States and therefore ineligible for asylum. Determination of refugee status for admission to the United States is governed by the same legal principles and standards as asylum, but unlike asylum, there is a strict limit on the number of people that can be accepted into the United States as refugees. Each year, the United States government sets a cap for the number of refugees it will accept from each continent. The United States has also established a tiered system of "refugee processing priorities", indicating specific countries and circumstances that are regarded as high priority under United States refugee law.
Cancellation of Removaltop ^
Cancellation of removal is an immigration remedy under which someone can apply for permanent residence in exceptional cases. There are three requirements to win cancellation of removal:
- the applicant must have been present in the United States for ten continuous years;
- the applicant must be a person of good moral character; and
- the applicant must have a U.S. citizen or legal resident spouse, parent or child who would suffer exceptional and extremely unusual hardship if the applicant were deported.
Naturalization (Citizenship)top ^
Naturalization is the process of acquiring United States citizenship. Applicants for naturalization must be at least 18 years old and must establish that they qualify to become U.S. citizens based on residence and physical presence; good moral character; knowledge of the English language, U.S. history and government; and loyalty to the United States. There are exceptions and exemptions to the requirements for military personnel.
If the applicant became a permanent resident based upon marriage to a U.S. citizen, he/she may apply for citizenship after three years from the time permanent residence or conditional residence was obtained provided he/she is still living with the U.S. Citizen spouse at the time of filing the application. Otherwise, the applicant must have resided continuously in the U.S. for at least five years. The application may be filed 90 days before the third or fifth anniversary of receiving the permanent residency, but not even a day earlier.
An applicant for citizenship must be physically present in the U.S. for at least one-half of the 5 years (or one-half of the 3 years if spouse of a U.S. Citizen) immediately preceding the application. He/she may not have any single absence from the U.S. of more than one year. Absences of more than six months but less than one year break the continuity of residence unless the applicant can establish that he or she did not abandon his or her residence during such period. If a person is found to have broken the continuity of residence, he/she may reapply for citizenship 4 years and 1 day following the date of return to the U.S. to resume residency (or 2 and 1 day if under the 3 year rule for spouses of U.S. Citizens).
An applicant must reside within the state in which the application is filed for at least three months.
The USCIS treats time spent in the service of the U.S. Armed Forces as time physically present in the U.S., even if the applicant was out of the country. Other exceptions to the physical presence requirement apply to certain employees working abroad for the U.S. government, American research institute, U.S. firm engaged in the development of foreign trade or commerce, or, public international organization; however, the applicant must first have obtained approval to preserve U.S. residency.
The applicant for naturalization must be a person of "good moral character" during the required permanent residency period (typically five years or three years if married to U.S. citizen immediately preceding the application). An applicant must disclose all relevant facts to the Service, including his or her entire criminal history. Any applicant with a criminal record should consult an immigration attorney prior to applying for citizenship because many crimes that make a permanent resident ineligible for citizenship make him or her deportable as well. A permanent resident applicant may find himself or herself in the position of having been denied citizenship and placed in deportation proceedings by the USCIS.
An applicant for naturalization must show that he or she is attached to the principles of the Constitution of the United States.
Applicants for citizenship must be able to read, write, speak, and understand words in ordinary usage in the English language. Certain applicants may be exempt from this requirement for medical reasons or based on age and length of US permanent residency.
The applicant for naturalization must also demonstrate a knowledge and understanding of the fundamentals of the history and of the principles and form of government of the United States. Applicants exempt from this requirement are those who, on the date of filing, have a medically determinable physical or mental impairment, where the impairment affects the applicant’s ability to learn U.S. History and Government.
Applicants who have been residing in the U.S. subsequent to a lawful admission for permanent residence for at least 20 years and are over the age of 65 will be afforded special consideration in satisfying this requirement.
To become a citizen, one must take the oath of allegiance.