I was arrested for a small petty theft. Is that a felony ?
Arrest at immigration interview
Looking for an immigration lawyer?
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How do I find details of a deportation notice?
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In this particular case, the filing of the I-130 does not determine if you should or should not leave the country. Rather, it is a matter of whether you qualify to adjust status or whether you must consular process.
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There are many ways that somebody who is here illegally can ultimately get their Green Card. For example, if the marriage is bonafide and you entered legally, but then fell out of status, you could adjust status in the U.S. (unless you entered on a C1/D visa.) Even then, while you might not qualify to adjust status, it is possible to be able to consular process with different types of waivers.
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Question: I understand that there are usually a lot of immigration laws that pass and either help or hurt immigrants. Now that we are in 2003, can you give a summary of some of the highlights of immigration regulations which were considered or passed in 2002?
ANSWER: The regulations issued during the 107th Congressional session have an immediate effect on foreign workers’ ability to obtain visas, enter, and remain in the United States in valid status. Human resources personnel should therefore expect to receive numerous questions about the scope of these new rules. The following is a brief overview of some of the more important immigration-related and business immigration-related regulations the INS and other agencies issued during the past year:
The Department of State raised Fees for Nonimmigrant Visa Processing: The State Department raised the machine-readable visa (MRV) fee charged for the processing of a nonimmigrant visa, or a combined nonimmigrant visa and border crossing card application, from $65 to $100, effective November 1.
Special Registration: The INS, on August 12, finalized a rule that requires certain nonimmigrants to undergo various registration processes, and imposes sanctions on those who do not follow the processes. Four groups so far have been ordered to Special Register.
Change of Address Notification: A July 26 INS proposed rule would require every applicant for immigration benefits to acknowledge having received notice that he or she is required to provide a valid current address to the Service, including any change of address, within 10 days of the change. In absentia removal orders could flow from failure to so provide.
Concurrent Filing: A July 31 INS interim rule provides that an Immigrant Petition for an Alien Worker (Form I-140) and an Adjustment of Status application (Form I-485) may now be filed concurrently when a visa number is immediately available. In addition, eligible individuals with I-140 petitions pending on July 31 may now file the I-485 and associated forms. The rule took effect upon publication.
Proposed PERM Rule on Labor Certification for Permanent Employment: The DOL, on May 6, published the proposed ‘PERM’ rule that would amend the agency’s regulations governing the filing and processing of labor certification applications for permanent employment in the U.S. The rule would also amend the regulations governing an employer’s wage obligation under the H-1B program. The final PERM rule is expected to be published in April 2003 and to take effect in July.
Foreign Health Care Workers: An October 11 INS proposed rule would implement a process for the certification of certain foreign health care workers, and would add a requirement that all nonimmigrants coming to the U.S. to work as health care workers, including those seeking change of status, be required to submit a certification. This rule is not yet in effect.
B-2 Visitors Visa: An April 12 INS proposed rule would eliminate the minimum admission period for B-2 nonimmigrant visitors, reduce the maximum admission period for B-1 and B-2 visitors, and restrict B visitors’ ability to extend stay or change to student status. This rule is not yet in effect.
Adjustment of Status under LIFE: The INS issued a final rule on June 4, implementing the adjustment of status application procedures under the LIFE Act’s ‘late legalization’ provisions. The rule extends the filing deadline to June 4, 2003, and makes various other changes based on comments received to the interim rule.
S Nonimmigrant Visa: The State Department, on November 4, finalized a rule implementing the ‘S’ nonimmigrant visa program. The S visa category is available to nonimmigrants determined by the Attorney General to have critical and reliable information concerning a criminal organization or enterprise.
Passenger Manifest Requirements: On January 3, 2003, the INS issued a proposed rule requiring all commercial carriers to submit a detailed passenger manifest electronically before either departing from or arriving in the United States. The information required for each passenger includes: complete name, date of birth, citizenship, sex, passport number and country of issuance, country of residence, U.S. visa information, address while in the U.S; and other necessary information. The rule took affect January 1, 2003.
Border Crossing Cards: The INS promulgated an interim rule that establishes procedures to terminate the use of current non-biometric border crossing cards (BCCs), eliminates certain former versions of BCCs, and clarifies the validity period of waivers of inadmissibility. The rule took effect retroactive to October 1.
State and Local Law Enforcement of Civil Violations of Immigration Law: The Justice Department, on July 24, finalized a rule permitting the Attorney General to authorize any state or local law enforcement officer, with the consent of those whose jurisdiction the individual is serving, to perform certain functions related to the enforcement of the immigration laws during the period of a declared “mass influx of aliens.”
As you can see there are lots of changes in the law. Hopefully, the new laws coming will have a positive impact on immigrants.
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Question: I have been in the United States for many years and would like to become a U.S. Citizen. Can you tell me how someone qualifies?
Answer: You may become a U.S. citizen (1) by birth or (2) through naturalization. Generally, people are born U.S. citizens if they are born in the United States or if they are born to U.S. citizens. If you were born in the United States, including, in most cases, Puerto Rico, Guam, and the U.S. Virgin Islands, you are an American citizen at birth. Your birth certificate is proof of your citizenship.
If you were born abroad and both of your parents are U.S. citizens and at least one of your parents lived in the United States at some point in his or her life, then in most cases you are a U.S. citizen.
If you were born abroad and only one of your parents is a U.S. citizen, then in most cases, you are a U.S. citizen if ALL of the following are true: One of your parents was a U.S. citizen when you were born; Your citizen parent lived at least 5 years in the United States before you were born; and at least 2 of these 5 years in the United States were after your citizen parent’s 14th birthday.
If you were born before November 14, 1986, you are a citizen if your U.S. citizen parent lived in the United States for at least 10 years and 5 of those years in the United States were after your citizen parent’s 14th birthday.
Question: If I have my Green Card, how do I become a naturalized citizen?
Answer: If you are not a U.S. citizen by birth or did not acquire U.S. citizenship automatically after birth, you may still be eligible to become a citizen through the normal naturalization process. People who are 18 years and older use the “Application for Naturalization” (Form N-400) to become naturalized. Persons who acquired citizenship from parent(s) while under 18 years of age use the “Application for a Certificate of Citizenship” (Form N-600) to document their citizenship. Qualified children who reside abroad use the “Application for Citizenship and Issuance of Certificate under Section 322” (Form N-600K) to document their naturalization.
Question: What are the requirements for naturalization?
Answer: Basically, you need to have been a permanent resident for at least five years (unless you became a lawful permanent resident through marriage to a U.S. Citizen which changes the time to 3 years) and need to have been physically present in the U.S. for at least 2 ½ of the previous 5 years with no absence for more than 6 months. You must have good moral character and be able to speak, read and write English.
Question: When does my time as a Permanent Resident begin?
Answer: Your time as a Permanent Resident begins on the date you were granted permanent resident status. This date is on your Permanent Resident Card shows where you can find important information like the date your Permanent Residence began.
Question: If I have been convicted of a crime but my record has been expunged, do I need to write that on my application or tell an USCIS officer?
Answer: Yes. You should always be honest with USCIS about all arrests (even if you were not charged or convicted) and convictions (even if your record was cleared or expunged). Even if you have committed a minor crime, USCIS may deny your application if you do not tell the USCIS officer about the incident.
Thus, you might be a U.S. Citizen without knowing it if one of your parents or both are U.S. Citizens. Alternatively, if you have committed a crime, or ineligible for some reason to Naturalize, USCIS might put you into deportation if you wrongfully apply for Naturalization. Therefore, you should make certain you qualify before you apply.
Filed under: Citizenship | Tagged: Citizenship, citizenship application, Immigration, Immigration Attorney, Immigration Lawyer, Naturalization, U.S. Citizens | Leave a comment »
Question: I understand that E-filing has begun. However, I am confused on what exactly it is, and what types of applications can be filed.
Answer: Each year the Bureau of Citizenship and Immigration Services (BCIS) receives approximately seven million applications for immigration benefits. BCIS has now developed the technology to accept electronic filing of certain applications for immigration benefits. This technology improves both customer service and BCIS’ ability to verify the identity of individuals in the future. E-filing – combined with the collection and storage of an applicant’s digital photograph, signature, and fingerprint – allows the BCIS to produce immigration documents with special security features. Applications that can be filed online are forms I-765 (Application for Employment Authorization) and I-90 (Application for Replacement of Green Card). These two forms represent approximately 30% of the total number of benefit applications filed with BCIS annually.
Question: What must the applicant do to apply for this?
Answer: E-filing is quick, easy and convenient for applicants because it allows them, or their representatives, to complete and submit applications at any time, from any computer with Internet access. Upon completion of the e-filing session, customers will receive instant electronic confirmation that the application was received. Customers can then schedule themselves for an appointment to visit an Application Support Center for collection of a digital photograph, signature, and fingerprint.
For those who file electronically, BCIS confirms the identity of the customer early in the application process. BCIS also electronically collects a photograph, signature, and fingerprint for the individual. These biometrics are stored and can be used later for verification of the person’s identity.
Question: Are there any other forms available for electronic filing?
Answer: Presently no. However, BCIS intends to add electronic filing capabilities for additional forms in the Fall of 2003. Additional forms include: Form I-129, Petition for Nonimmigrant Worker; Form I-131, Application for Travel Document; Form I-140, Immigrant Petition for Alien Worker; Form I-539, Application to Extend/Change Nonimmigrant Status; Form I-821, Application for Temporary Protected Status; and Form I-907, Request for Premium Processing.
Filed under: e-filing | Tagged: e-filing, filing fees, Immigration, Immigration Attorney, Immigration Lawyer, Travel Document | Leave a comment »
Question: I have a friend that has been in a most unfortunate circumstance. She was actually kidnapped from her home and sold into the underground world of sex slaves. Somehow, she escaped and fled to the U.S. She has no higher education or any job skills and no other family in the U.S. Is there anything she can do to stay here in the U.S.?
Answer: Yes, there is a new visa named the T Visa. To qualify, the person must be a victim of severe trafficking in persons. This can be a sex slave as you have mentioned, or it can be other forms of trafficking in persons such as slaves or involuntary servitude of any kind. The services provided must have been done under coercion or force.
Question: What must my friend do to avail herself of this T Visa?
Answer: First, she must be a victim of severe trafficking of persons. Next, she must be physically in the U.S. on account of such trafficking. If she is older than 15 years old, she must have tried to get the law enforcement officials in her home country to try to stop the acts. She must also show that if removed, she will suffer extreme hardship and harm. The application must be filed at the INS Service Center where she is present.
Question: My friend is too young to make it by herself, even if she gets the T Visa. Can her parents come and help and live with her?
Answer: Yes, the family members of a T Visa holder can get what is known as derivative status. This means that the parents and children (if they exist) can apply for the derivative T Visa. This is unique in visas. Normally, the parents do not derive any benefits from a visa obtained by their child. However, in this case, because of the nature of the visa, Congress has sought to allow parents to avail of this relief. The derivative applications must be sent along with the original application by the primary applicant.
Question: How long will my friend be able to stay on T status?
Answer: It can be issued for up to three years. There is no renewing this visa. However, after the three years, your friend can apply for Lawful Permanent Residency. Additionally, as long as the principal applicant (your friend) remains eligible, the family members also on T Visa can apply for Lawful Permanent Residency themselves.
Question: Assuming my friend gets the visa, is she guaranteed to get the Green Card?
Answer: Unfortunately, there is never a guarantee when it comes to immigration. However, in this case, there are specific provisions that allow INS to revoke or take away the visa status. The regulations do not specifically state how or why INS would revoke it, but assumably if the threat no longer exists, or they found out that it was obtained through fraud or misrepresentation, they could decide to revoke the visa. If this happens, they could be removed from the U.S. However, on the whole, this T Visa appears to benefit people who suffer extreme and outrageous conduct by other people. This is the United States stating to the world that anyone who is subjected to this cruelty will be welcome and allowed inside the U.S.
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Filed under: T-Visa | Tagged: Immigration, Immigration Attorney, Immigration Lawyer, T-Visa (Victim of Severe Trafficking), Visa | 1 Comment »
Question: I have tried to come to the U.S. many times, but only to get refused by the U.S. embassy. I have been told that I do not qualify for an H-1B or Specialty Occupation Work Visa because I do not have a college degree. I have been told that I cannot get a Labor Certification for the Green Card because I have no experience and I have been told that I cannot work on a Student Visa. I really want to come to the United States, but do not know how. Can you suggest any options?
Answer: Yes, there is a visa known as the H-3 Visa. It is known as the trainee visa. What this means is that you can come to the United States in order to get training in a field that interest you.
Question: Are you allowed to work on this visa?
Answer: First, the visa is not primarily for working. However, as long as there is a program that you will be trained, then work can be done in order to supplement and understand the training. Thus, there will be a portion of each day that will be devoted to working. You can get paid for this work.
Question: What if the company does not have a training program?
Answer: It is not necessary that they already have a training program. However, if they already have one in existence, then it would go smoother. However, the training program can be established for the first time so that you can come to the U.S. to get the training with the necessary work support to understand the training.
Question: What types of positions will qualify for the H-3 Visa?
Answer: There is not any particular position. That is why this is such a nice visa. It can be computer related, managerial related, medical, operational, clerking, warehousing, and so on.
Question: How long does this visa last for?
Answer: Normally, it lasts for up to two years. But you want to keep something in mind. First, as long as you leave the U.S. prior to the actual two years has been completed, you can return to the U.S. at any time afterwards with a valid visa. However, if you actually stay the entire two years, you must stay outside of the U.S. for six months.
Question: Is there anyway to change your status to another visa after you would get the H-3?
Answer: Yes, you can change or adjust your status when you’re on the H-3. For example, part of your training might be to complete your degree. Once that happened, then you could change for H-3 to H-1B which is a working visa. You could also change it to a myriad of different other types of visas. This visa is a very nice one for people in your situation and all you need is a company willing to sponsor you for this visa with the intention to train you for some type of position. You should inquire into this visa so that you are not stuck outside the U.S.
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Filed under: Immigration Law | Tagged: H-1B Specialty Visa, Immigration, Immigration Attorney, Immigration Lawyer, Labor Certification | Leave a comment »
Question: I have tried to come to the United States on different types of visas, but have been denied at each turn. I cannot get a Visitor Visa and do not qualify for an H-1B work visa. I have also been denied the Student Visa. Do you have any suggestions?
Answer: The J Visa is very versatile. One can come in on the J Visa for many types of purposes. For example, the J Visa is available for students, professors and research scholars, short-term scholars, trainees, specialists, foreign medical graduates, international and government visitors, teachers, camp counselors and au pairs.
Question: Can you explain in some more detail what is involved with these categories?
Answer: For the students, a J is available for persons going to colleges that have been approved with a J Program. Students under certain conditions are allowed to work.
A trainee is one of the more popular uses of the J Visa. A trainee as an individual participating in a structured training program conducted by the selecting sponsor. The primary purpose of the trainee category is to enhance the exchange visitor’s skills in his or her specialty or non-specialty occupation through participation in a structured training program and to improve the participant’s knowledge of American techniques, methodologies, or expertise. The following areas are available for issuance of the J-1 Visa. Arts and culture; information media and communications; education, social sciences; library science, counseling and social services; management, business, commerce and finance; health-related occupations; aviation; the sciences, engineering, architecture, mathematics, and industrial occupations; construction and building trades; agriculture, forestry and fishing; public administration and law; and various other occupations as specified by the sponsor.
A J-1 specialist is defined as an individual who is an expert in a field of specialized knowledge or skill coming to the United States for observing, consulting, or demonstrating special skills. This category does not include professors, research scholars, short-term scholars, or foreign physicians in training programs. This type of J-1 can by used in lieu of the H-1B.
The au pair program permits foreign nationals to enter the United States for up to one year to live with a U.S. host family and participate directly in the home life of the family while providing limited child care services and attending a U.S. post-secondary educational institution.
Professors and research scholars may be sponsored as J-1 exchange visitors to engage in research, teaching, lecturing, observing, or consulting at research facilities, museums, libraries, post-secondary accredited educational institutions, or similar institutions.
Foreign medical graduates sponsored by accredited academic institutions with designated exchange visitor programs may come to the United States as exchange visitors for the purposes of observation, consultation, teaching, or research.
Teachers may be sponsored as exchange visitors to teach full-time at accredited primary or secondary educational institutions.
Secondary school students may come to the United States as J exchange visitors for up to one year to study at a U.S. public or private secondary school, while living with a U.S. host family or at an accredited U.S. boarding school.150 Participants must pursue a full course of study at an accredited educational institution for at least one and not more than two academic semesters.
A camp counselor is an individual selected to be a counselor in a summer camp in the United States who imparts skills to American campers and information about his or her country or culture. Participation in camp counselor exchange programs is limited to foreign nationals who are at least 18 years old and are bona fide youth workers, students, teachers, or individuals with special skills.
The summer/student travel work program is a program that authorizes foreign university students to travel and work in the United States during their summer vacations to involve the students directly in daily life in this country through temporary employment opportunities.
As you can see, the J Visa offers many options. While there may be a two-year foreign residency requirement, many times this type of visa offers the only hope for getting into the U.S.
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Filed under: Visa | Tagged: H-1B Specialty Visa, H-1B Visa Attorney, Immigration, Immigration Attorney, Immigration Lawyer, J-1, Visa | Leave a comment »
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