Articles Posted in Foreign nationals

In this video we cover a new USCIS policy that can have devastating consequences on students who overstay their duration of stay in the United States, or otherwise violate their status. This new policy will change the way F-1, J-1, and M students, accrue unlawful presence in the United States, for visa holders have violated the terms of their visa by not attending school or engaging in unauthorized employment.

Background

In the year 1996 Congress passed legislation that previously governed how an individual on a non-immigrant visa type such as an F-1 visa, could accrue unlawful presence. Pursuant to this legislation, visa holders who overstayed for more than 180 days, could be subject to a 3-year bar, while visa holders who overstayed for more than one year, could be subject to a 10-year bar.

Typically, individuals who travel to the United States on a non-immigrant visa type receive an I-94 arrival/departure record and a stamp in their passport indicating the length of their authorized stay in the United States. Failure to abide by the duration of stay results in an immigration violation of the terms and conditions of a non-immigrant visa type.

F, J, and M students are unique in that these individuals do not receive a definitive length of stay within the United States, and instead are issued an I-20 (for F students) or DS-2019 (for J students) that denotes their authorized stay as “D/S” or “Duration of Stay,” meaning that the individual’s stay within the United States is not confined by any particular date, but instead depends upon the conclusion of that individual’s program of study or authorized employment.

While students on an F-1 visa type could violate their status by failing to go to school, they could not accrue unlawful presence within the United States because of the D/S designation. This class of individuals could only accrue unlawful status at the time of being apprehension by an immigration official or by court judgment.

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In this post, we answer one of your most frequently asked questions: how can you find the right immigration lawyer for you?

You need an immigration lawyer, but how do you find the right one? Watch this video to learn all about what you need to know before hiring an immigration lawyer.

In this video we offer several guidelines that can help you decide on the right immigration lawyer for you.

Referrals

First of all, you may want to begin by asking for a referral from your close network of friends or family members who may have already worked closely with an immigration lawyer. Social media is a great resource to ask for recommendations from your network and look up reviews of immigration attorneys in your area. You should make a list of the attorneys you would like to work with and contact their offices to set up a consultation. Most attorneys offer free first-time consultations. Free consultations are a great opportunity for the client to meet one-on-one with the attorney and see if you have a connection with the attorney and would ultimately like to retain the attorney to work on your particular case.

Flat Fee Considerations

Secondly, it is important for you to find out during your consultation whether the attorney charges a flat rate for his services or whether the immigration attorney bills the client an hourly rate. Most immigration attorneys charge flat rates for their services, but this may not always be the case depending on the type of immigration service you are seeking (for example asylum and removal defense cases may require additional costs). Flat rates are more desirable for clients because you will know up front how much it will cost you to pay for the legal fees associated with your case. This may be a good way to determine whether an attorney is the right one for you.

Come Prepared

Come to the consultation with the attorney prepared. Research the immigration service you are seeking and become informed about the process beforehand so that you can ask the attorney your burning questions and any concerns you may have before starting the filing process. You will want to discuss with your attorney the steps involved in the process, the general plan to achieving success on your application, the hurdles that you may run into during the process, and fallback options if your application is unsuccessful. An attorney who can provide you with the full picture of the legal process will allow you to have greater confidence and peace of mind.

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In this video we breakdown the labor certification process also known as “PERM.”

Overview:

What is labor certification? Labor certification is required because the government wants to make sure that U.S. workers are not adversely affected by the employment of the foreign national, in this case the beneficiary of the application.

Step one: Filing the labor certification application

The first step in filing a labor certification application is to file a prevailing wage request with the state workforce agency. This request will inform the employer about the wage that must be paid to the foreign national for the work to be performed. Knowledge of the prevailing wage is important because it will affect advertising for the position, the prevailing wage information to be included on the immigration forms, etc. Any mistakes that occur in this step of the process can affect the likelihood of success. It takes several months to receive the certified prevailing wage determination from the labor department. Once the certification is received, the recruitment process can begin.

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In this post, we discuss how you can get a green card through your employer.

Overview:

What does it take to get a green card through a job offer?

There are many ways a foreign national can obtain a green card for example by starting a company in the United States, as an entrepreneur, or demonstrating that they are a person of exceptional ability. However, the most common way to obtain a green card is to obtain a green card through a job offer. Essentially being sponsored by the employer that they are currently working for in the United States or their future employer. This process involves several steps:

  1. The Employer Must Commit to Green Card Sponsorship

The employer must commit to giving you a permanent job offer and be willing to support you in the green card process from start to finish. This is because the employer must not only sign the forms required to petition for the worker’s green card but must also foot the bill including the immigration fees and attorney’s fees. If an employer does not understand his responsibilities in filing for the worker’s green card, delays can result, and in some cases an employer may abandon the green card process altogether. It is very important for an employer to be aware of their obligations at the outset of the application process.

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In this video, we touch on a very common question: what are the possibilities of changing your status after a visa overstay?

If a person comes to the United States on a visa, whether it is a tourist visa or a student visa, there is a duration of stay that is attached to the visa. To determine the amount of time you are allowed to remain in the United States you must obtain your I-94 arrival/departure record from the CBP website.

If you entered the United States on a tourist visa you can typically stay for up to six months, and you can extend your stay for another six months. During your initial authorized stay, you may change your status to another category such as a student or investor visa. Once you have overstayed and essentially lost your legal status, it is very difficult to change to another legal status.

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Overview: 

What is an E-2 visa?

The E-2 treaty investor visa is a non-immigrant visa that allows foreign entrepreneurs from treaty nations to enter the United States and carry out investment and trade activities, for a specified period of two years subject to renewal. Investment activities include the creation of a new business. Foreign nationals must invest a substantial amount of capital in a new or existing business. The investment must be significantly proportional to the total investment, that is, usually more than half the total value of the enterprise or, if a new business, an amount normally considered necessary to establish the business.

Who can get it?

Only foreign nationals from treaty nations may apply for the E-2 visa. To find out if your country qualifies, click here.

Level of Investment

Therefore, the level of investment must be such that it is sufficient to justify presence of the treaty national in the United States. The investment must be in an operating business e.g. a speculative investment in undeveloped land would not qualify, whereas an investment in a real estate development project probably would. Also, a substantial part of the investment must have been made prior to applying for E-2 status.

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In this video, we discuss the difference between adjustment of status and consular processing.

What is adjustment of status?

Adjustment of Status is the process by which a foreign national applies for permanent residence, essentially their green card, within the United States. In order to apply for adjustment of status within the United States, the foreign national must have entered the United States lawfully (typically on a U.S. visa) and be married to a U.S. Citizen. The foreign national must not have entered the marriage within the first 90 days of entry to the United States. Doing so creates a presumption of fraud and the couple will be denied at the green card interview.

Example: The foreign national entered the U.S. on a student visa, and later met a U.S. Citizen. The couple then became engaged, and married in the U.S.

The process begins with the filing of the following forms typically at the same time:

  • I-130 petition for alien relative (signed by the U.S. citizen)
  • I-485 application for adjustment of status aka the green card application (signed by the foreign national)
  • I-765 application for employment authorization (signed by the foreign national)
  • I-131 application for travel document (signed by the foreign national)
  • G-325A biographical information (signed by both the U.S. Citizen spouse and foreign national)
  • I-864 Affidavit of Support (signed by the U.S. Citizen)

The process ends with a green card interview before a USCIS immigration officer at a field office near the couple’s place of residence. The purpose of the interview is to determine whether the couple has a bona fide marriage. Both the petitioner and foreign national must attend this interview.

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You’ve made it to the airport, but Customs and Border Protection has denied you entry into the United States, before even boarding the plane. What steps can you take to resolve the situation?

There may be various reasons why a CBP officer may prevent you from gaining entry to the United States. The most common reasons include:

  • When you have been in the United States in the past on a tourist visa and you overstayed the amount of time allowed in the United States
  • You were previously on a tourist visa in the U.S. and applied for an extension of stay, but that application was denied
  • You were previously in the U.S. on a tourist visa and you did not spend at least 6 months in your home country when you returned.
  • You are a legal permanent resident of the U.S. but you have lost your green card, you will not be able to board a plane
  • If you overstayed your visa and there is a record, you will not be allowed to re-enter the U.S.

What should you do when you are denied entry?

Contact an immigration attorney to determine the reason you are not allowed to board the plane. Typically, individuals in this situation must file an inquiry to find out the reason they were denied entry. It may be worth it to visit a U.S. embassy to receive more information regarding the denial of entry. In some cases the U.S. embassy may be able to re-validate your visa, or you may be able to file a waiver if you have been barred from the United States for certain violations.

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Learn more about the new 90-day presumption of fraud rule in this video and how it affects the adjustment of status of foreign nationals living in the United States.

0:24 – New Rule Changes

0:52 – What is 90-day Rule Do?

1:37 – Our advice or suggestions for this new rule

Overview: 

WHO:

In September 2017 the Department of State released an amended version of the Foreign Affairs Manual (FAM), which is a manual used by governmental agencies and other federal agencies that directs and codifies information that must be carried out by respective agencies “in accordance with statutory, executive and Department mandates.”

WHAT:

The new amended version of the manual expands the definition of misrepresentation, the types of activities that may support a presumption of fraud, and establishes changes to existing policies that federal agents must follow in making assessments of fraud or material representation.

According to the amended FAM: If a foreign national engages in any of the following activities, and applies for an immigration benefit, the FAM directs immigration officers to apply a presumption of fraud or material misrepresentation when the foreign national seeks adjustment of status:

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In this video, we explain the process of obtaining a green card if you have been a victim of domestic violence.

As a battered spouse, child, or parent of a U.S. citizen, you may self-petition for an immigrant visa petition under the Immigration and Nationality Act (INA), as amended by the Violence Against Women Act (VAWA), without the abuser’s knowledge. If you have an approved petition, you may be eligible to file for a Green Card.

Overview: 

Generally if you have been the victim of physical, emotional, or verbal abuse, as a spouse of a US Citizen, you may still apply for your green card (self-petition) without the US Citizen spouse, by filing the I-360 petition under the Violence Against Women Act (VAWA). Once approved, you may file for permanent residency. A VAWA petition may be filed regardless of gender.

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