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Do Immigrants Have Any Rights in the U.S.?

U.S. immigrants are often unsure about their basic rights as immigrants in the U.S. Questions like “Do immigrants have any rights?”, “If they do, what are the rights of immigrants?” are often raised and discussed by immigrants in various forums. For the benefit of our readers, we have compiled some of the basic rights of immigrants residing in the U.S. and tips to effectively enforce your immigrant rights when needed.

Rights of Immigrants in the U.S.

Employment Related Rights of Immigrants:
1. Regardless of your legal status, you have a right to receive at least the minimum wage for full-time work. You are also entitled to over-time wages when you work more than the stipulated hours.
2. You have a right to be treated and paid fairly at your work-place. You cannot be held in a job against your will, and you have a right to keep your passport and other identification documents in your possession. You may request help from unions, immigrant, labor rights and other groups and report abuse without retaliation. You also have a right to seek justice in U.S. courts.
3. You are entitled to have your workplace free from hazards likely to cause serious harm. Employers are required to remove hazardous materials from the workplace and provide you safety equipment wherever necessary.
Rights of Immigrants Against Unlawful Searches and Seizures:

Except in cases of emergencies, authorities are generally required to get a warrant signed by a judge, before they can search your home. You have a right to refuse entry into your home, without a valid warrant signed by a judge. To enter an immigrant’s workplace, an officer must have a valid search or arrest warrant, or must have the employer's permission to enter the workplace.
Rights of Immigrants Against Unlawful Arrest:

You have a right against being arrested unlawfully. A U.S. Immigration officer may generally arrest you without a warrant only if he believes that you are in the United States illegally and that you are likely to escape before a warrant can be obtained for your arrest.
Right of Immigrants to Remain Silent:

If you are ever stopped or questioned, and if either you do not have your documents with you, or you are an undocumented alien, you have the right to remain silent about your immigration status. This right to remain silent may be exercised by you at any place when questioned by authorities, such as in your home or in any public place.
Rights of Immigrants to be Represented by an Attorney:

You have a right to talk to and be represented by an attorney.
Rights of Immigrants to Refuse to Sign Any Document:

You have a right to refuse signing on any immigration document and to request to speak to an attorney before signing such documents.

Tips for Enforcement of Immigrant Rights:

You should carry proof of your immigration status at all times. If you are a permanent resident, you are advised to carry your Green Card. If you are a nonimmigrant alien, you may carry your I-94 card, a notation in your passport, or any other document proving your immigration status in the U.S.
If an officer begins to question you, you may ask the officer whether you are free to go. If the officer says yes, then you may leave. If the officer says no, you have a right to remain silent.
If you are arrested, you should remain silent and demand the right to speak to an attorney. Always keep in mind that any information given by you without consulting your attorney could endanger your case.
Do not give the officer any reason to charge you with disorderly conduct or obstruction of justice. Be polite while asserting your right to be silent.
Do not sign any document without consulting your attorney . By signing a document without consulting an attorney, you may be giving up some of your immigrant rights.
Always memorize and carry with you phone numbers of close family members, and your attorney.
If you are arrested or detained, you may ask to speak to someone from the consulate of your country.
Always keep more than one set of all your immigration papers fully updated in safe custody.

Conclusion:

U.S. immigrants must realize that even though their stay in the U.S. may be temporary, they still have many of the basic rights that U.S. citizens have. Immigrants must understand and exercise their basic rights to protect themselves. While the above mentioned rights for immigrants are commonly enforceable, you must obtain legal advice for your specific situation in cases of any violation of your rights. As a foreign national residing in the U.S., if you believe that your immigrant rights are being violated, you should contact your immigration attorney immediately and seek help.

The above article is brought to you by "VisaPro.com". VisaPro’s U.S. Immigration Lawyer Services include H1B, H3, B-1, L1 Visa, E2, Adjustment of Status, Green Card, and over 100 Immigration Services.

The information in this article is not intended to be legal advice. If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys at http://consultattorney.visapro.com.

Visit VisaPro regularly for updates and the latest immigration news at http://www.visapro.com/Immigration-News/Index.asp.

When is Your Priority Date Becoming Current: Should You Check USCIS Processing Times or DOS Visa Bulletin?

People are often confused when you start talking about the USCIS Processing Times and Department of State (DOS) Visa Bulletin. Many think that the USCIS Processing Times and Visa Bulletin are same, but this is absolutely incorrect. Processing times for petitions and applications are very different from the waiting times or priority dates.

Let us take a look at the following definitions to differentiate Processing Times and Visa Bulletin more clearly:

USCIS Processing Times — these give the USCIS’ estimations for how long it will take USCIS to process a class of petitions, applications, or other type of request.
DOS Visa Bulletin (Priority dates) — this establishes the approximate waiting times to obtain an immigrant visa or green card, based on a petition that has been approved by the USCIS.

In a broad sense, if you intend to become a Permanent Residents (Green Card holder) of the U.S., you have to go through two steps:

STEP 1: An employer or relative must file an immigrant petition with the USCIS on your behalf, and the USCIS must approve that immigrant petition for you. The immigrant petition could be family based or employment based.

NOTE:This is where the USCIS Processing Times would come into picture. You would be watching the estimated time USCIS takes to approve an immigrant visa petition in the particular category your petition falls into. The processing times are just that; how long it is taking USCIS to process petitions in a specific category.

STEP 2: An immigrant visa number, through the Department of State, must be immediately available to you, even if you are in the United States, in order to be able to become a lawful permanent resident.

NOTE: This is where the Department of State’s Visa Bulletin comes into the picture. After an immigrant petition is approved, the visa number must also be available before you may apply for Adjustment of Status(if inside the U.S.) or Consular Processing (if outside the U.S.).

Let us now see if we can get a clear understanding of the differences between USCIS Processing Times and DOS Visa Bulletin (Priority dates):

The DOS issues a monthly visa bulletin on the availability of immigrant visas. Because the U.S. Congress has capped the number of foreign nationals that can immigrate to the U.S. each year, an immigrant visa number is required for each person immigrating permanently to the United States. This applies whether the foreign national is seeking an Immigrant Visa at a U.S. Consulate outside the U.S., or through Adjustment of Status with USCIS inside the U.S. Immigrant visas are numerically limited by both the category and by the country of chargeability (usually the country of birth of the immigrant). Immediate relatives (spouses, parents and unmarried children under the age of 21) of U.S. citizens are granted immigrant visa numbers without limit, but all other applicants fall into “preference” categories and must wait in line for their particular category and country of chargeability.

If a category in the Visa Bulletin shows as Current (C), there is no backlog for that category for that month. If a category is Unavailable (U), then no applications for permanent residence will be accepted in that category during the month. If the foreign nationals country of chargeability (country of birth) is other than India, China, Mexico, the Dominican Republic, or the Philippines, use the “Worldwide” dates to determine whether a priority date is current. In order to be granted an immigrant visa or adjustment of status, your priority date must be before the date listed for your category and country.

Let’s look at a couple of examples:

CASE SCENARIO # 1

John, a Mexican national wants to apply for first preference family-based immigration. His priority date is 05/20/1993. According to the Visa Bulletin, the cut-off date for this group is currently 01/01/1992. Since John’s priority date is not earlier than the cut-off date, he must wait to apply for an immigrant visa or adjustment of status until the cut-off date passes his priority date (i.e. he must wait until the cut of date is 5/21/1993 or later).

CASE SCENARIO # 2

Benjamin is from India and has an approved third preference in family-based immigrant petition with a priority date of July 22, 1998. According to the Sate Department, the cut-off date for the category is currently August 01, 1998. Therefore, since Benjamin’s priority date is earlier than the cut-off date, he may apply to adjust status.

As noted above, an immigrant case is a two step process. You have to wait in line at each store. Think of the USCIS and the State Department as two different stores – the first one is where you pick up your petition, and the second is where you get your visa. Just because waited in line the first store does not mean that you can go right to the check out in the second store. You have to wait your turn in the second store as well. The first line you have to stand in is to get your immigrant petition approved, whether it is an employment or family based petition. That is where the USCIS’ processing times come in to play.

Once USCIS approves your petition, you now must wait in the second line, waiting for your priority date to become current. In this line you monitor the Visa Bulletin while waiting so that you can gage when you get to take that final step. It is only when the priority date is current that a person would be in a position to finally adjust status or be issued an immigrant visa. The only exception to this rule is if the beneficiary of the immigrant petition is an immediate relative: the spouse, parent, or unmarried child under the age of 21 of a U.S. citizen. Immediate relatives of U.S. citizens are not subject to the waiting times of the second line, the priority dates.

CASE SCENARIO # 3

Eric is from China applying for first preference employment-based immigration and has a priority date of 07/02/05. The State Department has set the cut-off date for this group at 07/01/05. Since Eric’s priority date is after the cut-off date, he must wait to apply to adjust status.

CASE SCENARIO # 4

Betty, a citizen of Australia, is married to a U.S. citizen and wants to get her immigrant visa to come to the U.S. to live with her spouse. Her spouse filed an immigrant petition for her 5 months ago that was just approved. Because Betty is an immediate relative she does not have to wait for a priority date, she can begin the immigrant visa process right away.

Conclusion

It is vitally important to understand that the Processing Times and Visa Bulletin are two different things. When people consider only processing times, particularly with regard to I-485 cases, disappointment often results. When they think that I-130s could reunite their families, they become frustrated with the years it takes to process and the prolonged delay in bringing these families together. Therefore, you need to understand the difference between the two and the significance of both the Processing Times and Visa Bulletin when you are calculating how long it may take before you relative or employee can come to the U.S.

The above article is brought to you by "VisaPro.com". VisaPro’s US Immigration Lawyer Services include K-1 Visa, K-3, Adjustment of Status, Green Card, and over 100 Immigration Services. The information in this article is not intended to be legal advice.

If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys at http://consultattorney.visapro.com

We cover the latest happenings on work visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.

Overstay, Out-of-Status and Unlawful Presence: What Do These Terms Mean and How Can They Affect You?

The U.S. immigration process is complex and can be confusing, as can immigration jargon. If you are applying for any type of nonimmigrant visa for the U.S., or if you will be visiting the United States soon, you need to understand the differences between “Overstay,” “Out-of-Status (Unlawful Status),” and “Unlawful Presence,” so that you can take measures not to fall into any of these categories. The consequences of overstay, out-of-status and unlawful presence are very stiff and the penalties imposed are very severe. Therefore you must take care not to fall in any of these categories.

Before we look at the differences between overstay, out-of-status and unlawful presence, let us first look at what these terms, and some other key terms related to them, actually mean.

Lawful Presence: You would generally enter the United States legally if you have applied for and received a visa at a U.S. consulate in your home country or abroad, and are inspected and admitted by a U.S. Customs officer at a U.S. port-of-entry. The visa stamp in your passport does not guarantee entry into the U.S., it only allows you to seek entry. It is the officer at the U.S. port-of-entry who decides whether or not to grant you entry into the U.S. The Customs officer at the U.S. port-of-entry gives you a ‘Lawful Status’ that governs your authorized period of stay in the United States when he or she admits you.

Once you enter the U.S. you must maintain your lawful status. If you file a timely (i.e., before your current status expires) non-frivolous application for Extension of Stay or Change of Status, you will still be considered to be in a period of stay authorized by the Department of Homeland Security until the date the USCIS makes a decision on the application. If the decision is negative, unlawful presence would start accruing from the date of the decision and not from the date of the expiration of the prior nonimmigrant status.

CASE SCENARIO - LAWFUL PRESENCE

Peter Thompson, a Russian national applied for a B-2 Tourist Visa at the U.S. Consulate in Moscow. The Consular Officer gave Peter a 10 year multiple entry B-2 visa. Peter travelled to the U.S. on January 5 and at the port-of-entry the Customs Officer gave him an I-94 valid until July 5, i.e., valid for 6 months only. Thus, Peter’s Lawful Status is the time stamped on his I-94 Arrival/Departure document. At the end of the period (after the date written on the I-94), i.e., on July 5, he must either leave the U.S. and re-enter at a later date with the visa, or file to change or extend his ‘Lawful Status’ before his current stay expires.

Overstay: Overstay means staying in the U.S. beyond the date indicated on your I-94 or the corresponding D/S (Duration of Status). Overstay is one of the acts (the most common) that causes you to be ‘out of status’.

NOTE: Persons admitted for duration of status can only overstay if found to be in violation of status.

Click here to read the consequences of overstaying a visa.

CASE SCENARIO - OVERSTAY

Peter Thompson can legally stay in the U.S. as a B-2 tourist visitor until July 5. After July 5, Peter should leave the U.S. and re-enter with the visa or file to change or extend his B-2 status. When Peter fails to leave the U.S. by July 5, or apply for an extension of stay or change of status before the expiration of his B-2 status, he is staying beyond the date indicated on his I-94 (July 5) and he is overstaying his visa.

Out-of-Status: Out of Status means that you have violated the terms of your ‘Lawful Status’ in some way. Each status comes with a bundle or rights, or activities that you are allowed to participate in. Examples of activities that will leave the foreign national out-of-status: working without authorization, a fiancé(e) who dies not marry the U.S. citizen who petitioned him or her for K-1 fiancé visa, student not going to the school which issued him or her their 1-20, and conviction of a serious crime.

OUT-OF-CASE SCENARIO STATUS

Peter Thompson is remaining in the U.S. after his I-94 is expired, he did not apply for extension of stay and he did not file for change of status. He has overstayed his B-2 status and thus is Out-of-Status because he does not have any valid status in the U.S.

Unlawful presence: Unlawful presence means presence in the U.S. after the expiration of the period of stay authorized by the Immigration Inspector/Custom’s Officer at the time of entry. It also includes any presence in the U.S. without being inspected and admitted or paroled.

NOTE: If your I-94 is non-date specific, i.e D/S (Duration of Status), then Unlawful Presence begins when an Immigration Judge or USCIS adjudicator declares you have violated your status.

What Triggers Unlawful Presence?

Entering the U.S. other than through an established port of entry. Thus, foreign nationals who are present in the U.S. without inspection accrue unlawful presence from the date of their unlawful entry, unless they are protected from the accrual of unlawful presence through some other provision of law.

Foreign nationals who are paroled into the U.S. will accumulate unlawful presence once the parole is no longer in effect, unless the foreign national is otherwise protected from the accrual of unlawful presence.

Any foreign national who obtained permission to enter the U.S. by intentionally making a false claim to USCIS or has not been inspected and admitted. Those foreign nationals thus accrue unlawful presence from the date of their arrival.

Any foreign national who remains in the U.S. beyond his or her authorized period of stay, as noted on the I-94.

CASE SCENARIO - UNLAWFUL PRESENCE

Back to our case study, Peter. The time that Peter spends in the U.S. after falling ‘out-of-status’ is when he will start accruing Unlawful Presence in the U.S. Peter’s I-94 was good until July 5, but he left the U.S. on August 6. This means he was unlawfully present in the U.S. from July 6 to August 6, and his unlawful presence started accumulating from July 6, i.e., the date when he became out-of-status.

Out-of-status (Unlawful Status) Vs Unlawful Presence:

Out-of-status and unlawful presence are related but very different concepts. The following is a brief outline of the differences between the two. As noted above, a foreign national is out-of-status any time they have violated the terms of their visa, but they only begin to accrue unlawful presence when they have stayed in the U.S. beyond the date on their I-94 card. There are numerous situations where foreign nationals may be out-of-status,but are still not accumulating unlawful presence, some of which are listed below:

Foreign nationals who are out-of-status for a reason other than overstaying their authorized stay may not be subject to the 3 and 10 year bars. Whereas foreign nationals who have accrued unlawful presence are directly linked to the 3-year and 10-year bars. Thus, foreign nationals who accrue more than 180 days but less than 1 year of unlawful presence will be barred from re-entry to the U.S. for three years. Similarly, foreign nationals who have been in the U.S. for one year or more beyond the period of authorized stay are barred from re-entering the U.S. for ten years.

A minor child, under the age of 18, does not accrue unlawful presence for purposes of the three and ten year bars until the day after his or her 18th birthday.

A foreign national may be out-of-status in the U.S., but may not be unlawfully present in the U.S., whereas a foreign national having unlawful presence is, by definition, out-of-status. For instance, a nonimmigrant student on an F-1 or J-1 visa who is granted “Duration of Status” or “D/S” may be out of status if not enrolled in a school but would not be accruing unlawful presence for purposes of the 3 and 10 year bars.

A foreign national is unlawfully present in the U.S. if he or she is either present after the expiration of the period of stay authorized by the immigration inspector at the time of entry, or is present without being admitted or paroled.

On the other hand, out-of-status means that a foreign national has violated one of the rights or restrictions that are accorded a previously valid status. For instance, an F-1 student who drops out of school is out-of-status. However, a foreign national with a valid I-94 will not start accruing unlawful presence until an immigration judge or the USCIS makes a determination that the foreign national is out of status.

A foreign national with pending request for extension of stay or change of status, and who departs the U.S. while the request is pending, does not accrue unlawful presence, so long as the request was timely and non-frivolous, and the individual did not violate their status in any other way.

NOTE: Foreign nationals who are out-of-status for a reason other than overstaying their authorized stay may not be subject to the 3 and 10 year bars. Whereas foreign nationals who have accrued unlawful presence are directly linked to the 3-year and 10-year bars. Thus, foreign nationals who accrue more than 180 days but less than 1 year of unlawful presence will be barred from re-entry to the U.S. for three years. Similarly, foreign nationals who have been in the U.S. for one year or more beyond the period of authorized stay are barred from re-entering the U.S. for ten years.

Now that we have been through the review of out-of-status and unlawful presence let’s look at a situation and see how the rules are applied.

PUZZLER

Peter Thompson is presently in the U.S. on an L-1A visa. His I-94 expired on March 1. One month earlier, on February 1, he timely filed for an extension of stay. Peter’s extension application is still pending and it is now September 5. Peter’s extension has been pending more than 180 days since the expiration of his L-1 status.

Questions:

1. Is he accumulating unlawful presence?

2. Does Peter’s protection extend to both 3 and 10 year bars?

3. What if USCIS denies the extension – when does unlawful presence begin to accrue?

4. What if Peter departed the U.S. while his L-1 extension was pending?

5. What if Peter’s L-1 extension is denied and in its decision USCIS finds that Peter improperly worked without authorization?

Answers:

1. No, he will not accrue unlawful presence until a decision has been made on the pending extension request.

2. Yes

3. If Peter receives a denial on the extension request unlawful presence will begin accruing from the date of the decision.

4. If Peter leaves the U.S. before a decision is made on his extension request he will not have accrued any unlawful presence and will not have been out-of status at any time while in the U.S.

5. In this situation Peter is out-of-status because of the improper employment, and he will begin accruing unlawful presence from the date of the decision.

Conclusion

While it is important to always maintain your nonimmigrant status while in the U.S., you may find yourself out-of-status, but not accruing unlawful presence. In this situation you would not become subject to the 3 and 10 year bars to returning to the U.S. However, if you have overstayed your authorized presence you are both out-of-status and accruing unlawful presence. You must be aware of the dates on your I-94, critical to unlawful presence, and what you can, and more importantly, cannot do in the status you have been granted.

Have you overstayed your visa in the U.S.? Or are you out-of-status in the U.S. currently? Or have you ever violated the terms of your visa? If you caught in any of the above situations, Consult VisaPro attorney immediately to assist you overcome such situation.

We cover the latest happenings on work visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.

Staffing or Third-Party Placement Consulting Companies: Do You Qualify for Filing H-1B Visas?

On January 8, 2010, the United States Citizenship and Immigration Services (USCIS) issued a memorandum intended to clarify the meaning of the “employer-employee” relationship for H-1B visa purposes. While the January 8 memo does not change any of the basic requirements for H-1B visa classification, the clarifications provided means that USCIS will be taking a closer look at all H-1B visa petitions, both new employment and extension petitions.

The January 8 memo focuses in particular on the employer-employee relationship where beneficiaries are placed at third-party worksites, are independent contractors, or are self-employed. Given the new emphasis on the employer-employee relationship petitioners will have to supply additional information to prove the employer-employee relationship.

We will address several of the main points of the memo through a “Question and Answer” format.

Question 1: Does the memo change any of the basic requirements for the H-1B visa status?
Answer: No. The memo is only intended to clarify the employer-employee relationship and outline the types of documentation necessary to establish that relationship.

Question 2: What kind of test will the USCIS use to determine if there is an employer-employee relationship?
Answer: The main test that the USCIS is using is whether the employer has the right of control over when, where, and how the employee does his or her work. The USCIS will use the common law definition of the employer-employee relationship.

Question 3: What factors will the USCIS use to determine if the employer has sufficient control?
Answer: There are numerous factors that they will look at, none of which is controlling by itself. These include:

Does the petitioner supervise the employee, and is the supervision on-site or off-site?
If the supervision is off-site, how does the petitioner maintain such supervision, i.e., weekly calls, reporting back to the main office routinely, or site visits by the supervisor, etc.?
Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
Does the petitioner hire, pay, and have the right to fire the beneficiary?
Does the petitioner evaluate the work-product of the beneficiary, i.e., progress and performance reviews?
Does the petitioner claim the beneficiary for tax purposes?
Does the petitioner provide the beneficiary any type of employee benefits?
Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
Does the beneficiary produce an end-product that is directly related to the petitioner’s line of business?
Does the petitioner have the ability to control the manner and means in which the work of the beneficiary is accomplished?

Question 4: What kind of documentation can I submit to show the required control?
Answer: The documentation provided must sufficiently prove that there is a valid employer-employee relationship. The following list is representative of the type of documentation that the USCIS will require:

Copy of the employment agreement between the petitioner and the employee, detailing the terms and conditions of employment.
Copy of the employment offer letter that describes the nature of the employer-employee relationship between the petitioner and the beneficiary, as well as the services the employee will perform.
A detailed job description.
Copy of relevant provisions of valid contracts between the petitioner and its client that show the petitioner will have the right to control any employees that are placed at a client site.
Copies of contracts, statements of work, work orders, service agreements, letters between the petitioner and client, or other similar documents that describe the duties of the H-1B employee, the qualifications required to perform the job duties, and who will supervise the H-1B employee.
Copy of the petitioner’s organizational chart showing the employee’s chain of supervision.
A description of the performance review process.

Question 5: Are the same documents required for both a new petition and a petition to extend H-1B employment without change?
Answer: Yes. However, in addition to proving that a valid employer-employee relationship exists H-1B petitioner seeking to extend H-1B employment will have to show that the employer-employee relationship was maintained throughout the prior approval period. You may do so by submitting a combination of the following:

Copy of the beneficiary’s pay records (pay stubs, leave records, etc.) for the previous H-1B period.
Copy of the beneficiary’s payroll summaries and/or W-2s for the previous H-1B period.
Copy of time sheets and/or work schedules for the previous H-1B period.
Copy of employment history records, including but not limited to, documentation showing date of hire, dates of job changes (promotions, transfers, and pay changes with effective dates).

Question 6: What documentation do I have to provide the USCIS if the employee is a “traveling” employee and will be placed at several locations during the period of the petition?
Answer: If the beneficiary will be placed at more than one location during the period of the petition, the employer will need to submit a complete itinerary for that employee that states the dates that the employee will be at each location or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues or locations where the services will be performed for the full period requested. USCIS will no longer accept a partial itinerary or an itinerary only for the initial part of the requested period.

Question 7: What will happen if the employer is unable to prove that there is a valid employer-employee relationship?
Answer: If the USCIS determines that the petitioner has failed to show that there is a valid employer-employee relationship they may issue a Request For Evidence (RFE). Any such RFE must state specifically what issues the adjudicator believes are deficient, and must “be tailored to request specific illustrative types of evidence from the petitioner that goes directly to what USCIS deems as deficient.”

Question 8: Can the USCIS deny my H-1B extension petition if there has been no change in my employment?
Answer: Yes, if the USCIS determines that you did not maintain a valid employer-employee relationship throughout your previously approved period of H-1B status, or violated any other provisions of your visa during that period, they may deny the H-1B extension petition.

Below are several examples of qualifying and non-qualifying employer-employee relationships:

The employee works at an office location owned/leased by the employer, the beneficiary reports directly to the petitioner on a daily basis, the petitioner sets the work schedule of the beneficiary, the beneficiary uses the petitioner’s tools/instrumentalities to perform the duties of employment, and the petitioner directly reviews the work product of the beneficiary. The petitioner claims the beneficiary for tax purposes and provides medical benefits to the beneficiary.

This is considered to be traditional employment for purposes of the employer-employee relationship. The petitioner maintains actual control of the beneficiary.

The petitioner is an accounting firm with numerous clients. The beneficiary is an accountant. The beneficiary is required to travel to several client sites for auditing purposes. In performing such audits, the beneficiary must use established firm practices. If the beneficiary travels to an off-site location outside the geographic location of the employer to perform an audit, the employer provides food and lodging costs to the beneficiary. The beneficiary reports to a centralized office when not performing audits for clients and has an assigned office space. The beneficiary is paid by the petitioner and receives employee benefits from the petitioner.

This is considered temporary off-site employment with right to control maintained.

The petitioner is an architectural firm and the beneficiary is an architect. The petitioner has a contract with a client to build a structure in a location out of state from the petitioner’s main offices. The petitioner will place its architects and other staff at the off-site location while the project is being completed. The contract between the petitioner and client states that the petitioner will manage its employees at the off-site location. The petitioner provides the instruments and tools used to complete the project, the beneficiary reports directly to the petitioner for assignments, and progress reviews of the beneficiary are completed by the petitioner. The underlying contract states that the petitioner has the right to ultimate control of the beneficiary’s work.

This is considered long-term/permanent off-site employment with right to control specified and actual control exercised.

With the shift in emphasis by USCIS, and the additional scrutiny H-1B petitions are receiving, third-party placement and staffing companies especially must be very careful in the preparation of new H-1B petitions. Because of the employer/employee relationship requirement many of the petitions approved in the past may no longer qualify for H-1B treatment.

It is now more important than ever to prepare a solid well documented case for filing. Petitioners are going to have to file even more supporting documentation with each petition.

If you have any doubts whether your position qualifies for H-1B treatment we suggest that you consult an experienced VisaPro immigration attorney before starting the process.

Do You Know that Deportability and Inadmissibility Can Obstruct Your Path to US Citizenship?

James called the other day to ask our advice. He wanted to know if he did the right thing in listening to his public defender (PD) and taking a guilty plea to simple assault. It seems that he was involved in a barroom fight a few weeks ago and charged with several crimes. The prosecutor agreed to knock everything down to a single count of assault in return for a guilty plea, with a suspended sentence and unsupervised probation. James’ public defender said that it was a great deal and that he should take it quickly. James told his public defender a couple of times that he is here on an H-1B visa and that he doesn’t want this to affect his job or getting his green card. The PD said he wasn’t sure but that “it shouldn’t be a problem.” James may or may not have problems moving forward.

Overview of Current Law

Understanding the immigration consequences of a particular criminal disposition can be very complicated and involves careful analysis of the elements of the state and/or federal offense and the state’s particular disposition of the case under federal immigration law.

This article is meant to provide only a quick overview of the grounds of deportability and inadmissibility. In order to understand the immigration consequences of a particular criminal case disposition for a particular immigrant, you must first understand the distinction between the criminal grounds of deportability and the criminal grounds of inadmissibility, and when each applies.

Deportability v. Inadmissibility

There are two separate parts of the immigration law that may trigger removal based on a criminal offense—the grounds of deportability found at INA 237(a)(8 U.S.C. 1227(a)) and the grounds of “inadmissibility” found at INA 212(a)(8 U.S.C. 1182(a)). Which set of grounds may apply to an individual, or whether both apply, depends on the individual’s particular immigration status and situation. "Deportability" refers to the power of USCIS to expel an alien from the United States, whereas "inadmissibility" refers to the power USCIS to refrain anyone from entering the United States.

Deportability:

The deportability grounds are applicable to individuals who have been “lawfully admitted” to the United States, e.g., a lawful permanent resident or an alien in H-1B status. An alien has been “admitted” or made a lawful entry into the US only after they have been inspected by an immigration officer and that immigration officer has authorized their admission.

Inadmissibility

The grounds of inadmissibility apply to everyone else, even individuals who are in the United States but who have not been lawfully admitted to the United States, i.e., undocumented immigrants. In addition, the inadmissibility grounds may be applied to lawful permanent resident immigrants when such individuals travel abroad and seek re-admission.

Conviction

You must also understand what a “conviction” is for immigration purposes. A conviction includes any formal judgment of guilt that is entered by a court, or if an adjudication of guilt has been withheld, a conviction will still be found where a judge or jury has found the alien guilty or a plea of guilty or nolo contender has been entered or the alien has admitted sufficient facts to warrant a finding of guilt; and a judge has ordered some form of punishment, penalty, or restraint of liberty to be imposed.

As you can see the term conviction for immigration purposes is now very broad you may be “convicted” even in the case where judgment has been withheld, if you are ordered to pay a fine or possibly even court costs.

Criminal grounds for deportation of lawfully admitted immigrants:
You must also understand what a “conviction” is for immigration purposes. A conviction includes any formal judgment of guilt that is entered by a court, or if an adjudication of guilt has been withheld, a conviction will still be found where a judge or jury has found the alien guilty or a plea of guilty or nolo contender has been entered or the alien has admitted sufficient facts to warrant a finding of guilt; and a judge has ordered some form of punishment, penalty, or restraint of liberty to be imposed.

As you can see the term conviction for immigration purposes is now very broad you may be “convicted” even in the case where judgment has been withheld, if you are ordered to pay a fine or possibly even court costs.
Criminal grounds for deportation of lawfully admitted foreign nationals:
The criminal grounds for deportation of a lawfully admitted individual, such as a lawful permanent resident green card holder, are listed in INA Section 237(a)(2), 8 U.S.C. 1227(a)(2), and include the following:
- Conviction of any controlled substance offense (other than a single offense of simple possession of 30 grams or less of marijuana), whether the conviction is for a felony or misdemeanor.
- Conviction of a crime involving moral turpitude, whether felony or misdemeanor, committed within five years of admission to the United States and punishable by a year in prison—This category could include crimes in many different categories, e.g., crimes in which either an intent to steal or to defraud is an element (such as theft and forgery offenses); crimes in which bodily harm is caused or threatened by an intentional or willful act, or serious bodily harm is caused or threatened by an act of recklessness (such as murder, rape, and certain manslaughter and assault offenses); and most sex offenses. In many states, Class A misdemeanors as well as felonies are punishable by a year or more in jail so could, if deemed to involve moral turpitude, make an individual deportable if committed within five years after admission.
- Conviction of two crimes involving moral turpitude, whether felony or misdemeanor, committed at any time after entry and regardless of actual or potential sentence.
- Conviction of a firearm or destructive device offense, whether felony or misdemeanor.
- Conviction of a crime of domestic violence, including stalking, child abuse, child neglect, or child abandonment, whether felony or misdemeanor, or a violation of an order of protection, whether issued by a civil or criminal court.
- Conviction of an aggravated felony—this category, which overlaps many of the above categories, has particularly harsh consequences because convictions falling into the aggravated felony category usually bar any possible waiver of deportation. Aggravated felonies include not only crimes such as murder, rape, and sexual abuse of a minor, but also many drug or firearm offenses, regardless of sentence; any crime of violence, theft or burglary offense, or obstruction of justice offense for which an individual gets a prison sentence of one year or more; fraud or deceit offenses where the loss to the victim(s) exceeds $10,000, as well as an expanding list of other specific offenses. As a result of broad interpretations of the statutory definition of “aggravated felony,” the term may include even some state misdemeanors such as a misdemeanor drug possession offense (preceded by a prior drug offense), misdemeanor sale of marijuana, or a misdemeanor petty larceny offense with a one-year prison sentence, actual or suspended.
Criminal grounds for inadmissibility of those seeking lawful admission
A foreign national who has not been admitted to the US, lawfully present but who has some claim to lawful status (e.g. married to a U.S. citizen) might be made permanently ineligible to be admitted as a lawful immigrant if convicted of certain crimes, or if he or she merely admits having committed a crime.

The criminal grounds for inadmissibility are listed in INA Section 212(a)(2), 8 U.S.C. 1182(a)(2), and include the following:
- Conviction or admitted commission of any controlled substance offense, whether felony or misdemeanor (this ground will apply even if a foreign national just admits to smoking marijuana).
- Conviction or admitted commission of a crime involving moral turpitude, whether felony or misdemeanor (subject to a one-time petty offense exception).
- Conviction of two or more offenses of any type with aggregate sentences to imprisonment of at least five years.
- Prostitution within 10 years, and commercialized vice.
Criminal bars to eligibility for U.S. Citizenship
- In the case of a lawful permanent resident immigrant, ineligibility for U.S. citizenship is an additional possible negative consequence of a criminal case. This comes from the requirement that an immigrant must demonstrate good moral character to become a US citizen.
- If a lawful permanent resident is deemed to have been convicted of an “aggravated felony”, he is permanently barred from being able to show the requisite good moral character for U.S. citizenship.
- A lawful permanent resident could also be deemed ineligible for citizenship based on conviction or admission of other offenses that fall into the criminal inadmissibility grounds, or other evidence of conduct indicating lack of good moral character coming out of a court proceeding.

Citizenship adjudicators are required to consider an individual’s conduct during the period of residence and good moral character required for a grant of citizenship, which is generally five years, but citizenship adjudicators can and will often look back even further in time.

As is the case with removal consequences, recent legislation has made citizenship ineligibility an even more important consequence than it was in the past. Primary examples are the new eligibility rules for various federal and state government benefits that now or in the near future may wholly or partially bar non US citizens.

Conclusion

The potential for a criminal conviction can now pose serious problems for non-citizens of the US. The federal immigration definition of what constitutes a conviction for immigration purposes includes not only formal judgments of guilt, but also deferred adjudications where there is a plea or other admission of guilt plus some penalty or restraint ordered by the court. The list of acts that can lead to inadmissibility or removal from the US continues to grow. Moreover, to ensure the safety of the US, the Department of Homeland Security is detaining and removing more and more non-citizens each year. In fact, DHS statistics show a dramatically increasing rate of removals based on criminal grounds over the past twenty years. If you are a non-citizen and have been arrested or charged with any crime you need to seek the assistance of an attorney that is familiar with both criminal and immigration law. Your very ability to remain in the US may depend on his or her expertise.

Back to James, whom we met at the top of this article. He may or may not have future problems based on his guilty plea. Much will depend on the specific terms of the statute that he pled to, and how long the suspended sentence is. We will have to wait for details to sort out his case.

If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys at http://consultattorney.visapro.com

We cover the latest happenings on work visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.

Immigration Consequences of Criminal Activity

The US Congress has set up stringent measures to determine classes of foreign nationals who may be admitted into the United States, and the grounds for which foreign nationals may be removed. According to the Immigration and Nationality Act (INA) certain conduct may disqualify a foreign national from entering the United States (inadmissibility) or provide grounds for his or her removal or deportation. Prominently featured among this conduct is criminal activity.

Criminal activities that can affect your immigration status include violations of federal, state, or, in many cases, foreign criminal law. Criminal activity does not cover violations of the INA that are not crimes, most notably, being in the US without legal permission. Thus, the term “illegal alien” — an alien without legal status — should not be held synonymous with “criminal alien.”

This article will discuss some of the potential immigration consequences of criminal activity by a foreign national. “Criminal activity” generally refers to conduct for which a foreign national has been found or plead guilty before a court of law, though in some limited circumstances immigration consequences may attach to the commission of a crime or admission of acts constituting the essential elements of a crime. Consequences may flow from violations of federal, state or foreign criminal law.

Most crimes affecting immigration status are not specifically mentioned by the INA, but instead fall under one of the broad categories of crimes, such as crimes involving moral turpitude or aggravated felonies. In addition, certain criminal conduct precludes a finding of good moral character under the INA, which is a requirement for naturalization and certain types of immigration relief.

The immigration consequences of criminal activity may be grouped into two broad categories of inadmissibility and deportability. A foreign national, therefore, if found guilty, will become subjected to the grounds for inadmissibility or deportability. Criminal conduct may also affect an alien’s eligibility for either voluntary departure or discretionary relief from removal. Additionally, as noted above, criminal conduct is a key disqualifying factor under the good moral character requirement for naturalization.

Categories of Criminal Aliens

The INA lists the criminal grounds for designating a foreign national as inadmissible or deportable.

The broad classes of crimes, including crimes involving moral turpitude, aggravated felonies, and crimes that preclude a finding of good moral character are overlapping, but no two classes are coextensive. The types of crimes constituting crimes of moral turpitude are generally determined by case law. Crimes that are aggravated felonies are listed with specificity in the statute, with case law illuminating the bounds of certain listed crimes. Finally, crimes precluding a finding of good moral character are determined by a combination of case law and statutory law. These criminal classes are further modified for the purposes of specific INA provisions. The following sections will describe these broad criminal categories in more detail.

Crimes Involving Moral Turpitude:

Immigration law has used the term ‘moral turpitude’ in its criminal grounds for exclusion since 1891. What constitutes moral turpitude for criminal purposes has been determined by judicial and administrative case law rather than a statutory definition. In general, if a crime manifests an element of baseness or depravity under current societal mores — if it evidences an evil or predatory intent — it involves moral turpitude. Thus, certain crimes such as murder, rape, blackmail, and fraud are considered crimes involving moral turpitude, whereas crimes such as simple assault have not been considered to involve moral turpitude.

Aggravated Felonies:

In 1988 Congress enacted the first ‘aggravated felony’ statute. Since then, Congress has designated specific offenses as aggravated felonies for immigration purposes, and has made removal of aliens convicted of such crimes a priority through streamlined procedures and ineligibility for various types of relief. Aggravated felonies were initially listed in the INA pursuant to the Anti-Drug Abuse Act of 1988 as part of a broad effort to combat narcotics trafficking. The only crimes designated in the 1988 Act were murder, drug trafficking, and illegal trafficking in firearms or destructive devices. Subsequent legislation has expanded the definition of “aggravated felony” a number of times, to include certain categories of crimes and many specific crimes.

INA Section 101(a)(43) defines “aggravated felony” through the listing of a number of criminal categories and specified crimes. The broadest categories of aggravated felonies under the INA are:

Any crime of violence (including crimes involving a substantial risk of the use of physical force) for which the term of imprisonment is at least one year;
Any crime of theft (including the receipt of stolen property) or
Burglary for which the term of imprisonment is at least one year; and
Illegal trafficking in drugs, firearms, or destructive devices.

Many specific crimes are also listed as aggravated felonies under the INA. These include:

murder;
rape;
sexual abuse of a minor;
illicit trafficking in a controlled substance, including a federal drug trafficking offense;
illicit trafficking in a firearm, explosive, or destructive device;
federal money laundering or engaging in monetary transactions in property derived from specific unlawful activity, if the amount of the funds exceeded $10,000;
any of various federal firearms or explosives offenses;
any of various federal offenses relating to a demand for, or receipt of, ransom;
any of various federal offenses relating to child pornography;
a federal racketeering offense;
a federal gambling offense (including the transmission of wagering information in commerce if the offense is a second or subsequent offense) which is punishable by imprisonment of at least a year;
a federal offense relating to the prostitution business;
a federal offense relating to peonage, slavery, involuntary servitude, or trafficking in persons;
any of various offenses relating to espionage, protecting undercover agents, classified information, sabotage, or treason;
fraud, deceit, or federal tax evasion, if the offense involves more than $10,000;
alien smuggling, other than a first offense involving the alien’s spouse, child, or parent;
illegal entry or reentry of an alien previously deported on account of committing an aggravated felony;
an offense relating to falsely making, forging, counterfeiting, mutilating, or altering a passport or immigration document if
- the term of imprisonment is at least a year and (2) the offense is not a first offense relating to the alien’s spouse, parent, or child;
failure to appear for service of a sentence, if the underlying offense is punishable by imprisonment of at least five years;
an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles with altered identification numbers, for which the term of imprisonment is at least one year;
an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;
an offense relating to a failure to appear before a court pursuant to
- a court order to answer to or dispose of a charge of a felony for which a sentence of two years’ imprisonment or more may be imposed; and
- an attempt or conspiracy to commit one of the foregoing offenses.

Note: Unless otherwise specified, an aggravated felony includes both state and federal convictions, as well as foreign convictions for which the term of imprisonment was completed less than 15 years earlier.

Crimes Affecting Finding of Good Moral Character:

Being a person of good moral character appears to always have been a statutory requirement for naturalization, and good moral character now also bears on the eligibility for various forms of immigration relief. Prior to 1952, the effect of criminal conduct upon findings of good moral character was determined solely by case law and administrative practice. Following the enactment of the INA, certain criminal activities were statutorily designated as barring a finding of good moral character.

The list of activities in the INA that prohibiting a finding of good moral character is not exclusive, and engaging in illegal or amoral activity that is not specifically designated by the INA may therefore still be considered when determining character. While most activities listed in the INA as barring a finding of good moral character directly relates to illegal behavior, some simply describe amoral behavior. INA § 101(f), states that an alien is barred from being found to have good moral character if, during the period for which character is required to be established, the alien:

commits certain acts related to prostitution or another commercialized vice;
knowingly encourages, induces, assists, abets, or aids any other alien to enter or to try to enter the United States in violation of law, except in limited circumstances;
commits a crime of moral turpitude, unless the alien committed only one crime and either
1. the crime was committed while the alien was a minor and the crime (as well as the alien’s release from any imprisonment for the crime) occurred at least five years prior to the pertinent application or
2. the maximum possible penalty for the crime did not exceed one year’s imprisonment and the sentence imposed did not exceed six months;
violates a federal, state, or foreign law or regulation relating to a controlled substance, other than a single offense of possessing 30 grams or less of marijuana;
commits two or more offenses for which the aggregate sentence imposed was at least five years;
gives false information in attempting to receive a benefit under the INA;
has an income principally derived from illegal gambling activities;
commits at least two gambling offenses for which the alien is convicted;
is in criminal confinement for at least 180 days; or
has at any time been convicted of an aggravated felony.

CASE SCENARIO
Tan went in to see an immigration attorney last week wanting to apply for naturalization. His new employer wants him to start traveling internationally for the company and wants him to get an American passport to help facilitate the travel. Tan is not sure what to do because he got caught in a sting operation about 6 years ago. Tan was a gun collector and got caught buying a gun that had been modified so that it was fully automatic and qualified as a “machine gun” under federal firearms law, which is illegal. As it turns out the ATF was after a big fish in the illegal arms game. Tan agreed to assist in their investigation and broker the gun he had bought to the target. Everything worked out well and the ATF successfully took the target off the streets. The ATF provided testimony on Tan’s behalf before the trial judge, and the judge was very lenient, but Tan still has a weapons violation on his record. Can or should he apply for naturalization? No. Since he has a federal weapons violation he is considered to be an aggravated felon. As an aggravated felon he would be barred from naturalizing and would be deportable. Because he would be considered an aggravated felon he may not even qualify for a waiver of the deportability. Tan has to do something to try to remove the conviction from his record before he can go forward with

Immigration Consequences of Criminal Activity

The potential immigration consequences of criminal activity include the following:

Deportation: You may be removed from the US, no matter what your immigration status (permanent residence (a green card), a student visa, a temporary worker visa, or asylum or refugee status). Deportability means the same thing to nonimmigrants and residents, yet very different consequences may ultimately arise from the same criminal conduct. Your status as a permanent resident or nonimmigrant will determine whether you are eligible for a waiver or cancellation of removal.
Inadmissibility: You may face a lifetime bar to adjust status to permanent residence or to even return to the US if you depart. Inadmissibility can apply in several contexts. It makes a foreign national who is abroad ineligible to receive a visa from a US Embassy, or that same foreign national cannot be admitted at a US port of entry even if they already have a visa, or a nonimmigrant foreign national already in the US is ineligible to adjust to permanent resident status. Inadmissibility also applies to lawful permanent residents.
Mandatory detention: Certain convictions will result in detention without the possibility of bond (bail) during the removal process, including the years that may be required for an appeal.
Denial of naturalization: Even if you are not deportable or inadmissible, you may be denied naturalization to US citizenship for 3 to 5 years or more.

How to avoid these consequences?

It is very important that you avoid any criminal activity, but it is especially important that you are not involved in any of the specifically listed activities while you are either inside or outside the United States, to avoid the serious immigration consequences of criminal activity. This is especially true if your long term goals include Permanent Resident status and/or Citizenship in the United States. Listed below are some common sense measures you can take to protect your status and your long term future.

Do not drink and drive. While this may not be as serious in your home country, it is taken very seriously in the U.S. If you plan to drink alcohol while you are out, arrange to either have a designated driver or to take a taxi.
Do not use illegal drugs! Being arrested with even a small quantity of marijuana can make you deportable.
Do not lie or misrepresent your actions on immigration applications or to a Department of Homeland Security (DHS) employee.
If you have concerns regarding something that you have done, then talk with an immigration attorney before you are interviewed or complete an application
Do not assume that they won’t find out. Since September 11, 2001 there is a greater level of cooperation among government agencies.
If you are arrested, you do have the right to an attorney and anything that you say can and will be used against you.
Make sure that you have a criminal attorney who is aware that there may be immigration consequences to any plea bargain or guilty plea and who works with an immigration attorney.
Remember, it is your responsibility to know the law and avoid committing crimes.

Conclusion

The immigration consequences of criminal activity, beyond the sentence you may receive in criminal court, can be very severe. Commission of a single offense may make a foreign national inadmissible and/or deportable on multiple grounds. The article gives you only a brief overview of the major categories of criminal offenses that are currently found in key portions of the Immigration and Nationality Act. To determine what the potential immigration consequences of criminal activity are, for nonimmigrant foreign nationals and permanent residents who have committed crimes, it is critical to understand the major classes of offenses as they are characterized under immigration law.

The passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) in 1996 made the immigration consequences of criminal activity far more extensive and severe than at any time in US history.

These acts radically redefined long-standing concepts at the intersection of criminal and immigration law, including what constitutes a “conviction” for immigration purposes. They also greatly expanded the number and types of crimes that can serve as grounds for deportation or removal from the United States, or ineligibility for admission. These laws have also effectively restricted judicial discretion by Immigration Judges and the courts alike, available forms of relief for many, and the judicial review (appeal) process, making immigration consequences of criminal convictions very severe.

Contact VisaPro if you have any questions regarding visas, or need help in filing with the USCIS or Consulates. Our experienced attorneys will be happy to assist you.

We cover the latest happenings on work visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.

214(b) Visa Denial: How to Avoid It and Can You Overcome It?

"Marc was extremely happy as his sister, Adonica, was coming to visit him to United States in three days. Suddenly, the phone rang. Marc could not believe his ears. Adonica, told Marc, “I’m not coming…the consul refused my visa under 214(b). I don’t know what to do.”"

Adonica is not the only one to fall prey to 214b visa denial. On any given day throughout the world, many people will find themselves in Adonica's situation. They hear the consular officer say, "Your visa application is refused. You are not qualified under Section 214(b) of the Immigration and Nationality Act." To hear this when you are not expecting it causes great disappointment and sometimes great embarrassment when you have to change all your plans. For many applicants the consular officer’s pronouncement that they have been denied a visa under INA §214(b) is the first time they have heard of it, and few are sure about the reasons for denial. What does a 214b visa denial mean? And what can you do to prepare for a visa reapplication?

What Is Section 214(b) of the Immigration and Nationality Act (INA)?

INA Section 214(b), also found in the United States Code at 8 USC 1184(b), states:

"...every alien . . . shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15)."

This simply means that before you can be approved for a nonimmigrant visa, you must prove that you will return to your home country. You must show that you have no intention of abandoning your residence there. The law places the burden of proof on you to prove that you have “strong ties” in your country that would compel you to leave the US at the end of your temporary stay and return home.

Thus, to avoid a 214 b visa denial, applicants must convince the Consular Officer of the following:

that they intend to return to their home country after a temporary stay in the United States,
that their financial situation is such that they can afford the trip without having to seek unauthorized employment in the U.S., and
that the travel is for legitimate purposes permitted by the applicant's visa category.

From the above discussion, one thing is certain: having strong ties with your home country matters a lot when it comes to getting a nonimmigrant visa for United States. At this point I know you must be asking ‘what is meant by having Strong Ties? Why is it important? How to I know if I share a strong bond with my country? What to do if I don’t have a strong tie with my country?.’

Let’s quickly go the answer for your first question, ‘what constitutes strong ties with one’s home?’

What constitutes ‘Strong Ties’?

Actually, there is no standard definition for ‘Strong Ties.’ What constitutes strong ties will differ from country to country, city to city, and individual to individual. "Ties" are the various aspects of your life that bind you to your country of residence: your family and social relationships, employment, and possessions. Some examples of ‘ties’ can be family, a job or business, a house, a bank account, and investments. Each person's situation is different.

Consular officers are trained for and aware of this diversity. During the visa interview they consider professional, social, cultural and other factors each person presents. In cases of younger applicants who may not have had an opportunity to form many ties, consular officers may look at specific intentions, family situations, and long-range plans and prospects within the country of residence.

Why Do Immigration Officers Place Such High Importance on ‘Strong Ties’?

Many people ask this question. It’s very important that you understand the meaning of Strong Ties if you are applying for a visa. The bond that a person shares with his or her country helps the officer determine that the applicant possesses a residence abroad and that they have no intention of abandoning it. In the officer’s point of view, an applicant should have such strong ties with his or her home country that they will compel him or her to leave the US at the end of his or her temporary stay to return home

CASE SCENARIO
Anjou, a young man from central Africa, applied for a visitor visa to travel to the US to visit a younger brother living in Atlanta, GA. He was denied under 214(b) because the consular officer did not think he would be coming back. He had not gone to the interview prepared to address the intending immigrant issues. Anjou went home and gathered documents to show his ties to his home country. When he went in for his next interview he was ready. He had a single sheet that outlined for the consular officer all his reasons for staying, and attached to it all the documents to support his claim. He started out by showing that all of his family lives in his hometown in Africa, except his brother who is attending college in the US. His family owns several pieces of property in Africa. He owns his own business which he started when he graduated from college, and which is doing very well. The business has several employees and will be run by his office manager in his absence. He also owns his own house, and will be getting married early next year. At the interview the consular officer took the package of materials and reviewed them quickly, asked Anjou a few questions about his trip and granted the visa. Preparation paid off for Anjou and at the beginning of the month he will be off to the US to spend a couple of weeks with his brother.

Is a Denial Under Section 214(b) Permanent?

No. A consular officer will reconsider a case if you can show further convincing evidence of ties to your home country. You should contact the embassy or consulate, or look on their website, to find out about reapplication procedures. Unfortunately, some people simply will not be able to show ties to their country and, therefore, will not qualify for a nonimmigrant visa, regardless of how many times they reapply. This will only change when their personal, professional, and financial circumstances change.

What Should You Do In Case of a 214b Visa Denial?

If you were refused a visa under section 214(b), you may reapply. When you do, you will have to show further evidence of your ties or how your circumstances have changed since the time of the original application.

First, carefully review your situation and realistically evaluate your ties. You may want to write down on paper an outline of what qualifying ties you think you have that may not have been properly evaluated at the time of your interview with the consular officer. Also, you should review any documents that were submitted for the consul to consider, and look at what documents could have been presented that weren’t.

It may help to answer the following questions before reapplying:

Did you explain your situation accurately?
Did the consular officer overlook something?
Is there any additional information you can present to establish your residence and strong ties abroad?

Note: You should also be aware that you will be charged a nonrefundable application fee each time you apply for a visa, regardless of whether a visa is issued.

Conclusion

When applying for a nonimmigrant visa you have to be prepared. At your visa interview you have to be ready to present your case to the consular officer in a clear and concise manner. You only have a few minutes to convince the officer that you are a good candidate for a visa. You should have all the points you want to make (ties to your home country) outlined and you should have all your supporting documents in order and ready to present.

Finally, know your travel plans. You should be able to tell the officer without hesitation or faltering the 5 “w”s:

Why are you planning to travel to the US?
When are you planning to travel, and how long do you plan to stay?
Where are you going to stay, and who will you be staying with?
Who are you planning to see while in the US?
What are you planning to do while in the US?

While there is no clear definition of “strong ties” you can be successful if you are prepared. So gather your documents, be confident, and good luck.

VisaPro Attorneys have been training and helping foreign nationals put together the correct documentation for a visa interview. In our experience, the approval rate for foreign nationals with the correct documentation is very high. If you are a foreign national seeking advice on visa denials consult a VisaPro attorney.

Mock Interview 1 (Windows Media File)

Mock Interview 2 (Windows Media File)

Mock Interview 3 (Windows Media File)

I-94 or Visa: How Long Can I Stay?

I just entered the US. I have a visitor’s visa that says it is good for 10 years, but at the airport they stapled a card in my passport that says I was admitted for 6 months. How long can I actually stay in the US: 6 months or 10 years?

I can’t tell you how often we get asked this question, but it has to be at least a dozen times a month. The lack of knowledge or misunderstanding about the role of a visa and the ”I-94 card” has been a major factor for many foreign nationals that have fallen out of status in the United States. Why is this? What is the difference between visa and I-94 card? Which one determines how long can I stay in US – the I-94 or Visa?

The simple answer: A visa allows a person to appear at the gate (a port of entry) and ask to be let in, and the I-94 card is your actual admission ticket, telling you how long you can stay and what you can do while you are here.

Visa vs. I-94 Card: An Overview

While a visa is a permit to seek entry to the US, the I-94 card gives you permission to enter and remain in the US. Very few foreign nationals are aware that their stay in the US is controlled by the I-94 card issued to them at the time of entry, and not by their visa. Incorrect interpretations of the dates on I-94 or visa could cause serious trouble. It is the I-94 card that says how long you can stay in the US, and in what status you were admitted. Just to make sure you clearly understand this, let’s look at another example:

A citizen of China who wishes to enter the US as an H-1B professional can get a visa that is only valid for 3 months. However, they can be admitted for the length of the approved petition, typically 3 years. This means that the individual must travel to the US within 3 months of being issued the visa, but once he or she enters the US they would be able to stay for up to 3 years. He or she would only need to depart the US at the end of the specified period or the date specified in his I-94 card.

Now that we have a general overview of the I-94 card and the visa let’s look at the specifics and the difference between visa and I-94 card.

CASE SCENARIO

Jae Yong, a Korean citizen who is a reporter for the Korean Times, is being transferred to the US as a foreign correspondent for the paper. He will be stationed in Washington DC and reporting on US politics. He is granted an I visa for journalists and media representatives. The visa is valid for 5 years. When he entered the US his I-94 was marked D/S for “duration of status.” This means that as long as Jae is working as a foreign correspondent for the Korea Times he can stay in the US. There is no end time that he is required to leave the US.

What is an I-94 Card?

An I-94 card, also known as the Arrival/Departure Record, is a small white colored card given to all nonimmigrants when they enter the US. The I-94 card serves as evidence that a nonimmigrant has entered the country legally. It is stamped with a date indicating how long the nonimmigrant may stay for that particular trip. It is this date – and not the expiration date of the visa – that controls how long a nonimmigrant may legally remain in the US.

A new I-94 card with a new date is issued each time the nonimmigrant legally enters the US. The I-94 card will be stapled in your passport, normally on the page opposite your visa. Note that because of special rules in place between the US and Canada, Canadian visitors are not normally issued I-94 cards.

When you enter the US as a nonimmigrant, a U S I mmigration I nspector will examine your passport and visa, question you on the reason for your visit, and, if satisfied that you qualify for the nonimmigrant status you are seeking and will abide by the US immigration rules, give you the Form I-94 (Arrival/Departure Record). As we stated above, it is t his record -- not your visa – that tells you (in the lower right-hand corner) when you must leave the United States.

On this I-94 card the Immigration I nspector will write either a date or "D/S" (duration of status). If you have "duration of status" you may remain in the U.S. as long as you are in the same job or attending the same school . You will complete this form and submit it to the Immigration Inspector when you arrive at the airport, seaport, land border crossing point, or other port of entry.

I-94W: Citizens of the countries on the U S Visa Waiver Program list, who are entering the United States for a short stay and who are not U S citizens or Permanent U S Residents, must fill out form I-94W instead of the I-94.

The image below is a sample I-94 card, with the relevant information, which includes:

You have to be very certain that all the information in your I-94 Card is correct, and that your name, date of birth, and country of citizenship match the information in your passport.

What is the purpose of I-94 card:

The I-94 Card serves as the registration form for foreign nationals admitted to the US as nonimmigrants. This document is created by US Immigration when the foreign national is inspected upon arrival at a US port of entry. The Immigration Inspector will endorse the I-94 card with the date of arrival, place of arrival, status granted (i.e., F, J, H, L, etc.), and length of authorized stay. The foreign national keeps the I-94 Card as their official record of admission and permission to remain in the US.

If a foreign national either needs to remain in the US for longer than the time granted, or decides they want to change their status and remain in the US beyond the date on the I-94 card, he or she must file an application for a change of status or an extension of stay with US Citizenship and Immigration Services (USCIS).

When you depart the US, you must surrender your I-94 Card, unless you will be traveling only to Canada, Mexico, or adjacent islands (other than Cuba) for a period not exceeding 30 days, in which case you may be able to use the I-94 Card to reenter the US.

Now that we know what the I-94 card is and why the US Immigration uses it, let’s see what a visa is. Then we can see the difference between visa and I-94 card. Hopefully then you will not be confused in the future.

What is a Visa?

A visa is a stamp in the foreign national’s passport issued by an American Embassy or Consulate in the foreign national’s home country. The visa allows the foreign national to seek entry to the United States in a certain visa status within the time period (validity period) specified on the visa. A visa may allow one, two or multiple entries before the expiration date of the visa.

The visa allows the foreign national to seek entry to the United States in a certain visa status within the time period (validity period) specified on the visa

Difference between Visa and I-94 Card

It is extremely important that you clearly understand the difference between visa and I-94 card. The major difference between visa and I-94 card are as follows::

The I-94 is stamped with a date that indicates how long the foreign national can stay in the United States for that particular trip. Your stay in the US is not determined by the expiration date of your visa.

The I-94 card gives you permission to remain in the US, while a visa is a permit to seek entry to the US.

The I-94 generally has a validity period shorter than your visa.

The I-94 card is completed by an Immigration Inspector when a foreign national is inspected upon his arrival in the US, whereas a visa is issued by the US State Department and is obtained at an American consulate outside the United States.

What do you do if you want to apply for a Change of Status or Extension of Stay but your I-94 will expire next month?

If you want to stay longer than the date authorized by your I-94 card, you must apply for an extension of stay with the USCIS.

If you are in the US in any nonimmigrant visa category that supports a change of status or extension of stay you can file for a change of status or extension of stay by filing Form I-539 with USCIS. It is generally advisable to file for the extension or change of status request at least 30 days before to the expiration of I-94.

The decision to grant or deny a request for extension of stay is made solely in the discretion of the USCIS (you have no right to stay beyond the date on your I-94 card). In some cases, you may not be eligible to apply for an extension. Also, the USCIS generally will not extend your stay for a period longer than the validity of your visa.

If the USCIS approves such an application, they will issue an approval notice, the bottom portion of which is a new I-94 Form for the foreign national, reflecting that new visa status and/or extended or new period of authorized stay for that status.

Foreign nationals who enter the US under the visa waiver program (VWP) are not entitled to change their status or extend their time of stay in the US. They must depart within the 90-day period allowed visa waiver visitors. Moreover the may not simply travel to a contiguous country in order to exit and reenter for a "new" 90-day period. Proof that you are willing to obey US immigration laws and follow the dates on I-94 or visa appropriately (i.e., applying for an extension rather than just staying past the time on your I-94) will be important if you want to travel to the United States in the future.

What if your I-94 card has incorrect information on it?

If you discover after entry that the I-94 card, was issued with an error, you should go, if possible to the port of entry where you entered, and if not possible, to the nearest Immigration (Customs and Border Protection) Office with proof of entry or admission and the I-94 card, and request a corrected I-94. If the incorrect I-94 card was issued by USCIS (at a local USCIS office or from a USCIS Service Center), you should go to the nearest USCIS local office and request a new Form I-94.

If the Immigration Officer at the local office is not convinced that the I-94 was issued in error, he or she may advise you to file a Form I-102, Application for Replacement/Initial Nonimmigrant Arrival/ Departure Document. This is why it is so important to take the time to check your I-94 card for correctness before you leave the inspection area. A quick check can save you several hours of frustration later in your trip.

Conclusion:

Applying for a visa is only the first step in your journey to the US. Once you receive a visa, you can travel to the United States and seek admission. However, the visa does not guarantee that you will be allowed to enter the United States. It is up to the Immigration Inspector at the port of entry, from a separate government agency, who has the authority to grant or deny your admission to the United States. In addition, it is the Immigration Inspector – not the terms of your visa – who will determine how long you get to stay in the United States. Incorrect interpretations of the dates on I-94 or visa could cause serious trouble.

If you have any query about the I-94 card or how long you can stay in the US or extend your stay, consult a VisaPro immigration attorney. We will be happy to guide you through the process.

The above article is brought to you by "VisaPro.com". VisaPro’s US Immigration Lawyer Services include H-1B, K-1 Visa, K-3, L-1, Green Card, and over 100 Immigration Services.

The information in this article is not intended to be legal advice. If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys at http://consultattorney.visapro.com/

Visit VisaPro regularly for updates and the latest immigration news at http://www.visapro.com/

Immigration Inspection At A U.S. Port-Of-Entry: Things You Must Know

If you are traveling to the United States for the first time you are likely to have questions about what happens when I arrive at the Port-of-Entry?

A foreign national traveling to the United States will arrive initially at a U.S. “Port-of-Entry" (POE). The POE can be an airport, a land border crossing, or a seaport. Passing through a Port-of-Entry generally means that you are seeking permission from an Immigration Inspector, an official of the U.S. Customs and Border Protection (CBP), to enter the U.S. for a specific reason, purpose and duration, which are generally always predefined.

All foreign nationals arriving at a US POE are inspected by officials of the US Government. They have to go through four different inspections:

Public Health,
Immigration,
Customs, and
Agriculture.

Some or all of these inspections may be conducted by the same officer.

Inspection at a U.S. Port-of-Entry: What do CBP officials do?

Upon your arrival at the U.S. Port-of-Entry you must present your passport and other required documents. CBP officers will review these to determine whether to allow you to enter the U.S.
Your first encounter with CBP officers will be at a primary inspection station where they ask foreign nationals questions to determine their identity and nationality.
If they decide to admit you the CBP officer will also determine how long you will be allowed to stay in the US, and in what status you will be admitted.
At the U.S. Port-of-Entry CBP officers review passports, visas, and other supporting documents of each and every foreign national arriving in U.S. The CBP officers also compare fingerprint records and name check databases for recent derogatory information, ask questions about the foreign nationals general qualifications for the visas they have, review the Form I-94 Arrival and Departure Record (or, for Visa Waiver travelers, Form I-94W).

What Kind of questions do the CBP officers ask?

CBP officers at U.S. Port-of-Entry will ask you questions to determine the true intent of your trip to the US. Inspections Officers are trained, and have the experience to back up their training, to indentify if a foreign national has a pre-conceived intent behind their trip to the US, i.e., they are looking to see if you are actually coming to go to school or for a job interview when you say you are coming to visit Disneyland. If an officer is not convinced with your initial statements, they may ask for additional supporting documentation be allowing you to enter the US.

CBP officials – their power and authority – what they can do?

CBP officers conducting the inspection at a U.S. Port-of-Entry have complete power and authority and it is up to their discretion to conclude whether or not a foreign national is eligible to enter the U.S. It is only after a CBP officer stamps and dates the I-94 form, places an admission stamp in the foreign national's passport, and the foreign national passes through the inspection station that the foreign national is admitted to the United States.

Secondary Inspection – what leads you to a secondary inspection?

If the first CBP officer that a foreign national meets feels that the inspection requires additional time for review to determine a foreign national's eligibility, the officer may refer the foreign national for a “secondary inspection.” This secondary inspection at a U.S. Port-of-Entry is a much more comprehensive review, and can take several hours to complete. Generally a foreign national referred for secondary inspection is not considered to be “admitted” to the United States.

What generally happens in a secondary inspection?

In secondary inspection, CBP officers will ask foreign national more detailed questions about their travel plans for the U.S. Foreign nationals may even be asked to produce additional identification and other documentation in order to determine their actual identity and purpose of their visit to the United States. The foreign national and their belongings may also be searched, and the foreign national may be required to give a full set of fingerprints.

Any person, foreign national or person with a claim to U.S. citizenship and presenting a U.S. passport may be sent to secondary inspection at a U.S. Port-of-Entry if the CBP officer has reservations about admitting him to the United States. A person may also be sent to secondary inspection if there is a possibility the person is smuggling contraband or violating any other customs or immigration regulations, or federal law in general.

CASE SCENARIO
Brenda arrived at the immigration inspection station at Chicago’s O’hare International Airport. When she stepped up to the immigration station the officer noticed she was more nervous than usual. After asking her a couple of questions he referred her to secondary for further questioning. At secondary they opened her luggage and found a wedding dress, and she admitted that she was coming to the US to get married. Brad was on the same plane and got to the immigration inspection station shortly after Brenda. The officer wondered why he was carrying a brief case since his stated reason for travel to the US was to “see the sights” and visit the Disneyworld. It seemed strange that he flew in through Chicago when there were better flights to the Orlando area. Brad was also referred to secondary where it was discovered that he had a stack of resumes in his brief case and that he had several job interviews lined up over the next several days. Both Brenda and Brad can be denied entry because they gave false information or withheld material evidence from an immigration inspector at the time of their seeking entry into the US.

Arriving at a US Port of Entry – a detailed look:

Airport

When your initial arrival in the United States will be an airport, the airline will give all non-US citizens a form to complete while en route to the United States, either Form I-94 (white), Arrival/Departure Record, or Form I-94W (green), Nonimmigrant Visa Waiver Arrival/Departure Form. The forms ask for primary identification information and the address where you will stay while in the US.

Upon arrival, you will be directed by airline personnel or US immigration officers to the inspection area. You will queue up in one of several inspection lines and speak with an Immigration Inspector. If you are a US citizen, special lines may be available to you. If you are not a US citizen, you should use the lanes marked for non-US citizens.

If you are a US citizen, the inspector will ask for your passport, verify your citizenship, and then welcome you back to the US. You will then proceed to the customs inspection area.

If you are a foreign national, the CBP officer must determine the reason for your trip to the United States, what documents you have to present, whether you have those documents, and how long you should be allowed to initially stay in the United States if all your documentation is in order. The time taken to determine these elements is usually less than one minute. If you are to be admitted and allowed to proceed, the Inspector will stamp your passport and issue you a completed Form I-94. A completed form will show what immigration classification you were given and how long you are allowed to stay. This I-94 Form, not your visa, indicates how long you may stay in the U.S. It is advisable that you do not lose your I-94 card as you will need it when you leave the country.

Completion of entry paperwork if arriving by air: Flight attendants will distribute Customs Declaration Forms (CF-6059) and Arrival Departure Record Forms (I-94) prior to you arrival in the US. These should be completed prior to landing and must be completed before you meet with an Immigration Inspector.
Land

At a land border POE you foreign nationals will undergo the same general process. However, one CBP officer may conduct all four inspections. That officer may send you to a secondary inspection area for further review or issuance of necessary papers. Once the initial CBP officer (Immigration Inspector) determines to admit you to the United States you may then be sent to customs or immediately allowed to proceed on your trip.

Completion of entry paperwork if arriving by land:The CBP Officer at the POE will provide the necessary Customs Declaration Forms (CF-6059) and Arrival-Departure Record Forms (I-94) to be filled out upon your arrival.
Sea
The inspection process at a sea port of entry is similar to the airport process. Oftentimes, all inspections will be completed prior to the boat's arrival in the United States seaport.

Completion of entry paperwork if arriving by sea: The CBP Officer at the port of entry will provide the necessary Customs Declaration Forms (CF-6059) and Arrival-Departure Record Forms (I-94) to be filled out upon your arrival.

Documentation Requirements for Arrivals at Ports of Entry:

Each nonimmigrant foreign national arriving in the United States must present a valid unexpired passport issued by his or her country of nationality and, if required, a valid unexpired visa issued by a US embassy or consulate abroad. Foreign nationals entering the US must also satisfy any other applicable admission requirements (e.g., United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT)).

Special Provisions for Canadians

Canadian Citizens traveling to the U.S. do not require a nonimmigrant visa, except while traveling to U.S. for certain purposes like:

Treaty Traders and Treaty Investors (E-1 and E-2)
Fiancee, Children of Fiancee, (K-1 and K-2)
U.S. citizen’s foreign citizen spouse, who is traveling to the U.S. to complete the process of immigration (K-3)
Children of a foreign citizen spouse (K-4)
Spouses of lawful permanent residents (V-1) traveling to the U.S. to reside in the U.S. while they wait for the final completion of their immigration process
Children of spouses of lawful permanent residents (V-2).

Permanent residents of Canada must have a nonimmigrant visa, unless the permanent resident is a national of a country that participates in the Visa Waiver Program (VWP); meets the VWP requirements and is seeking to enter the U.S. for 90 days or less under that program.

Most Canadian citizens are also not subject to the US-VISIT program. However, citizens of Canada applying for admission with a non-immigrant visa such as Canadian Citizens with K or E Visas; Canadian Permanent Residents and Canadians with dual nationality who present a non-Canadian passport when seeking to enter the U.S. will be subject the US-VISIT Program and will have their finger print scanned and digital photograph taken by the Immigration Authorities. CBP officers may also refer a visitor for US-VISIT processing as part of the US immigration inspection process if there is a concern about the nature of travel.

The Western Hemisphere Travel Initiative (WHTI) requires Canadian travelers to present a passport or certain border crossing cards when seeking entry into the U.S.

Special Requirements for Mexicans

Citizens and Permanent Residents of Mexico generally must have a nonimmigrant visa or Border Crossing Card. Nonimmigrant Visa is not required for Mexican B-1 and B-2 visitors who are in possession of a valid, unexpired ‘laser visa’ border crossing card (DSP-150), which can be issued to Mexican citizens seeking to enter the U.S. as B-1 or B-2 visitors for periods of stay not exceeding 6 months. All other Mexican citizens must present a visa.

Mexican Citizens traveling to the U.S. using a Border Crossing Card and traveling within the border zone will not be generally subject to US-VISIT Procedures. Mexican citizens planning to travel outside the border zone and/or stay for more than 30 days must complete Form I-94 and will be processed through US-VISIT. Mexican Citizens who participate in SENTRI and/or FAST programs will not be enrolled in US-VISIT procedures until they are required to re-register as part of the routine processing to renew a multiple-entry Form I-94.

Mexican citizens are not impacted by WHTI document requirements. Mexican citizen visitors, including children, are required to present a passport with a nonimmigrant visa or a laser visa Border Crossing Card to cross the U.S. border. This requirement applies to SENTRI program members as well.

TN-2 Mexican Professionals also must also carry copies of documentation presented to the consulate when the visa was issued and present it if requested by the Immigration Inspector.

Conclusion:

The United States has numerous Ports Of Entry that facilitate the entry and exit of persons and vehicles through its land borders with Mexico and Canada. The San Ysidro, California POE is the world’s largest land border crossing for personnel and passenger vehicles. This POE alone processes over 2 million visitors per month either as pedestrians or in passenger vehicles. The U.S. also has some of the busiest airports in the world, processing millions of passengers seeking to enter the U.S. each month. While this may seem a daunting task, the U.S. Customs and Border Protection agency has stepped up to the challenge.

The U.S., at every phase of the inspection process, takes the care and precautions necessary to make sure that they do not admit any persons who are not eligible for entry into the United States. If you have questions about the inspection at a U.S. Port-of-Entry or require assistance in coming to U.S., Contact VisaPro. Our experienced attorneys will be happy to assist you

The above article is brought to you by "VisaPro.com". VisaPro’s US Immigration Lawyer Services include H-1B, K-1 Visa, K-3, L-1, Green Card, and over 100 Immigration Services.

Visit VisaPro regularly for updates and the latest immigration news at http://www.visapro.com/

Becoming a Naturalized U.S. Citizen: The Simple Process

The ultimate goal of most foreign nationals, once they become permanent residents of the U.S., is to become a U.S. citizen. Naturalization is the process by which those foreign nationals (someone who was neither a citizen nor a national of the U.S. at the time of birth) apply for and obtain U.S. citizenship and become naturalized American citizen.

Many people hold a common perception that becoming a naturalized U.S. citizen is an extremely complicated and difficult process. But in reality the process is quite simple. While the naturalization process is relatively easy it doesn’t mean that you can take things lightly. And some foreign nationals find the process long and at times confusing. The reason for the long delays is that there are so many people who want to become U.S. citizens that all applicants must wait for their turn.

Many people do not understand what the requirements are, or why they are what they are. Let’s begin our exploration of this topic by looking at who qualifies to file for naturalization and the basic requirements or qualifications for naturalization.

Who qualifies to become a Naturalized U.S. Citizen:

Before you can begin the process for becoming a naturalized U.S. citizen, you have to fall into one of the following categories:

You are a foreign national who has been a permanent resident of the US for five years;

You are a foreign national who has been a permanent resident for three years, who is currently married to a US citizen, and has been married to the same US citizen for the past three years;

You are a foreign national who has been a permanent resident and has served the US Armed Forces for at least three years;

You are a foreign national who served honorably in the US armed forces during a specified period of armed conflict. The following period have been designated under this provision:

World War I (November 11, 1916 – April 6, 1917)

World War II (September 1, 1939 – December 31, 1946)

Korean Conflict (June 25, 1950 – July 1, 1955)

Vietnam Conflict (February 28, 1961 – October 15, 1978)

Operation Desert Shield/Desert Storm (August 29, 1990 – April 11, 1991)

Operation Enduring Freedom (September 11, 2001 – Open)

Any other period which the President, by Executive Order, has designated as a period in which the Armed Forces of the United States are or were engaged in military operations involving armed conflict with hostile foreign forces;

You were married to a US citizen who died during a period of honorable active duty service in the US Armed Forces;

You served on a vessel operated by the US and have been a US permanent resident for the past five years;

You are an employee or an individual who is stationed or employed abroad under contract to the US Government and have been a US permanent resident for the past five years;

Are a person who performs ministerial or priestly functions abroad for a religious denomination or an interdenominational organization with a valid presence in the US, and have been a US permanent resident for the past five years; or

You are spouse of a US citizen who is stationed or employed abroad, and who is one of the following:

A member of the US Armed Forces;

An employee or an individual under contract to the US Government;

An employee of an American institution of research recognized by the Attorney General;

An employee of a public international organization of which the United States is a member by law or treaty;

An employee of an American-owned firm or corporation engaged in the development of foreign trade and commerce for the United States; or

A person who performs ministerial or priestly functions for a religious denomination or an interdenominational organization with a valid presence in the United States.

Basic Requirements for Naturalization:

The basic requirements for naturalization are:

Live in the US as a permanent resident for a specific amount of time (Continuous Residence).

Be present in the US for specific time periods (Physical Presence).

Spend specific amount of time in your state or USCIS district prior to filing.

Behave in a legal and acceptable manner (Good Moral Character).

Know English and information about US history and government (English and Civics).

Understand and accept the principles of the US Constitution (Attachment to the Constitution).

These are the basic requirements for becoming a naturalized U.S. Citizen. But what do they mean? Let’s take a closer look and find out.

Continuous Residence

The immigration laws have clearly defined “continuous residence.” It means that you must live in the US as a permanent resident for a specified period of time. Most people must be permanent residents in continuous residence for five years, three years if married to a U.S. citizen, before they can begin the US naturalization process.

For refugees, this means five years from the date they arrived in the US, which is usually the date they obtained permanent resident status. For those granted asylum status in the US, this 5 year period begins one year before they received their permanent resident status. The date on your Permanent Resident Card is the date your specific period (usually the five years) begins. If you leave the United States for a long period of time, usually six months or more, you may be deemed to “break” your continuous residence. If you are outside the US for 1 year or longer you automatically have a break in your continuous residence and the five year clock starts ticking on the date of your return, however, you will reach the “five” year mark in four years and one day because you can count the one year period preceding your return as part of the five years.

Physical Presence in the United States

As with continuous presence the immigration laws have clearly defined “physical presence.” It means the time that you have actually been present in the United States. If you are a permanent resident at least 18 years old, typically you must be physically present in the United States for at least one-half of the continuous residence period. For most permanent residents that means 30 months during the last five years before filing, or if you are filing based on marriage to a US citizen 18 months during the last three years before filing.

Live within a state or USCIS district for at least three months before you apply.

Time as a Resident in the States or USCIS District of Filing

Prior to filing your application for becoming a naturalized U.S. citizen you must have lived in the state or USCIS district where you apply for at least three months. Students can apply for naturalization either where they go to school or where their family lives (if they depend on their parents for support).

Good Moral Character

The law requires that to be eligible for naturalization, you must be a person of good moral character for the statutory period (typically the five or three year period, however the USCIS can look back even farther). An applicant cannot be a person of good moral character and is permanently barred from naturalizing if they have ever been convicted of murder, or an aggravated felony on or after November 29, 1990. A person is not considered to be of “good moral character” if they commit certain acts and/or crimes during the statutory period (five years) before they apply for naturalization or if they lie during their naturalization interview.

Behaviors that might show a lack of good moral character:

Drunk driving or being drunk most of the time.

Illegal gambling.

Prostitution.

Lying to gain immigration benefits.

Failing to pay court-ordered child support.

Committing terrorist acts.

Persecuting someone because of race, religion, national origin, political opinion, or social group.

Most of these do not even require a conviction; simply engaging in the activity is sufficient for a finding that you are not a person of good moral character.

Knowledge of English and Civics

To become a naturalized United States citizen you must be able to read, write, and speak basic everyday English. You must also have a basic knowledge of U.S. history and U.S. form of government (this is also known as the “civics” portion of the interview).

At your interview on the N-400 you will be required to pass an English test and a test of civics.

The USCIS officer will ask you to read up to three sentences in English and to write up to three sentences in English that are dictated to you. The officer will also determine your ability to speak English during the course of the interview.

The test of civics is to examine your knowledge of U.S. history, the constitution, and our form of government. The U.S. government has decided that if an individual understands how decisions are made and which elements of American history have contributed to making the country what it is today, he or she will be more able to make sound decisions in the public arena when voting, and voicing his/her opinion, thus making him/her a better citizen.

Exemptions to the English and Civics requirements:

Certain permanent residents who have lived in the US for a long length of time when they apply for US naturalization have different test requirements because of their age and the length of time they have lived in the US.

If you are	Lived as permanent resident in the US for	You do not take the	You must take the
Age 50 or older Age 55 or older Age 65 or older	20 years 15 years 20 years	English test English test English test	civics test in your language civics test in your language simplified civics test in your language

Attachment to the Constitution:

Upon becoming a naturalized U.S. citizen you must be willing to support and defend the United States and its Constitution. You declare your “attachment” or loyalty to the United States and the Constitution, and renounce any foreign allegiance and/or foreign title, when you take the Oath of Allegiance. The final step in the naturalization process, and when you become a U.S. citizen, is when you take the Oath of Allegiance.

Oath of Allegiance: The Oath of Allegiance is a promise to be loyal to the United States that captured Confederate soldiers and Confederate sympathizers were forced to take to avoid being put in prison.

The Oath of Allegiance is:

"I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God."

In certain cases, where the applicant can show that he or she is opposed to any type of service in the armed forces based on religious teaching or belief, USCIS will permit these applicants to take a modified oath with the following phrase removed:

“. . . that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; . . .”

Naturalization Ceremonies:

If the USCIS approves your application for naturalization, you will be scheduled to attend an Oath Ceremony to take the Oath of Allegiance. The ceremony can be either an administrative ceremony administered by the USCIS or a court ceremony administered by a U.S. District Court Judge.

USCIS will send you a Form N-445, Notice of Naturalization Oath Ceremony, to tell you the time and date of your ceremony. You must complete this form (it will ask you questions about your activities since your naturalization interview and examination) and bring it to your ceremony.

If you cannot go to your scheduled ceremony, you can reschedule your ceremony. To reschedule, you must return Form N-445 to your local USCIS office along with a letter explaining why you cannot attend the ceremony. When you arrive and check in at your Oath ceremony you will turn in your Permanent Resident Card to the USCIS. You will no longer need your Permanent Resident Card because you will get your Certificate of Naturalization at the end of the ceremony.

An immigration official will read each part of the Oath slowly and ask you to repeat the words. After you take the Oath, you will receive your Certificate of Naturalization. This certificate proves that you are a U.S. citizen. As noted above, you do not become a U.S. citizen until you have taken the Oath of Allegiance at a formal naturalization ceremony. The Oath of Allegiance ceremony is a public event.

Conclusion:

Naturalization is one of the ways of obtaining U.S. Citizenship. Naturalization is a privilege extended to foreign nationals who meet the minimum requirements. You must prove your worth throughout the process, and in the end you will be granted a Certificate of Naturalization. U.S. citizenship bestows several rights and responsibilities on the new citizens. The naturalized United States citizen may now vote, serve on state and federal juries, petition to bring family members to the U.S., obtain U.S. citizenship for children born abroad, and will become eligible for many federal jobs and many more government benefits.

Overall the decision to pursue naturalization to become a U.S. citizen is one of the most important decisions that you will have to face. Given the privileges that come with being a naturalized United States citizen, it should not take you very long to reach your decision.

If you are think about becoming a naturalized U.S. Citizen or have any doubts in this matter, consult a VisaPro immigration attorney. We will be happy to guide you through the process.

The above article is brought to you by "VisaPro.com". VisaPro’s US Immigration Lawyer Services include H-1B, K-1 Visa, K-3, L-1, Green Card, and over 100 Immigration Services.

Visit VisaPro regularly for updates and the latest immigration news at http://www.visapro.com/

When to Use USCIS Premium Processing Service?

What is USCIS Premium Processing Service?

Premium Processing Service Came into Effect on June 1, 2001 to Expedite USCIS’ Decision: On June 1, 2001, the U.S. Immigration and Naturalization Service (now U.S. Citizenship and Immigration Services) put into place a Premium Processing Service, promising to speed up the agency's applications decision process on selected work visas.

$1,225 Extra and USCIS Provides Decision Within 15 Calendar Days: Under the USCIS Premium Processing Service, paying an additional $1,225 fee will guarantee an USCIS decision on eligible temporary work visas within 15 calendar days of the receipt of the application by the USCIS. If the application or petition is not adjudicated within the 15 days the additional fee of $1,225 will be refunded and the case will still be completed under the Premium Processing rules.

USCIS’ Decision Could be Approval, Denial or Request for Evidence: The processing period that will be used to determine whether or not the USCIS meets the 15-day period will begin when the Form I-907 is delivered to the USCIS (at the appropriate address) and will end upon the USCIS mailing of a notice. The notice may be a notice of approval, request for evidence, intent to deny or notice of investigation for fraud or misrepresentation.

NOTE: If the notice requires the submission of additional evidence or of a response to intent to deny, a new 15-day period will begin upon the delivery to the USCIS of a complete response to the request for evidence or notice of intent to deny.

Who is Eligible for USCIS Premium Processing Service?

Work Visas - E-1, E-2, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3 and Q-1: Beginning with implementation of the program on June 1, 2001, employers filing a Form I-129 to classify a beneficiary under one of the following nonimmigrant categories could request USCIS Premium Processing Service: E-1, E-2, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3 and Q-1.

Major Work Visas Including H-1B, TN and R: Since July 30th, 2001, the USCIS has made Premium Processing Service also available to employers wishing to file petitions to classify a beneficiary as an H-1B, TN or R nonimmigrant, thus covering all the major nonimmigrant work visa categories. The USCIS has also extended the Premium Processing Service to certain Form I-140s.

What is the Fee for Premium Processing Service?

The fee for USCIS Premium Processing Service is $1,225. The Premium Processing fee is in addition to all other USCIS filing fees for the application or petition.

How to Apply for Form I-907, Premium Processing?

Use Form I-907, Request for Premium Processing Service: Application for premium processing of a petition is made by filing a completed and signed Form I-907, Request for Premium Processing Service and attaching a separate remittance of $1000. Form I-907, together with Form I-129 and the supporting documents, may be filed with the USCIS Premium Processing Service unit of the USCIS Service Center.

Upgrading Regular Petition to Premium Processing:

In the case where an I-129 petition has already been filed without a request for Premium Processing, the regular processing can be upgraded to USCIS Premium Processing Service by forwarding Form I-907 and the check for remittance of $1,225 to the Service Center where the I-129 petition is pending, together with a copy of the Notice of Action Receipt Notice, Form I-797, as proof of receipt of the petition by the Service Center.

The 15-day Guarantee:

If the USCIS Service Center fails to process the petition within 15 calendar days, it will refund the $1,225 to the company and continue to process the petition as part of the Premium Processing Service. In addition to expedited processing, companies who participate in the program may use a dedicated phone number and e-mail address to check on the status of their petition or ask any other questions they may have concerning their petition.

Benefits of USCIS Premium Processing Service: When to Use?

Very Effective, Saves Time Esp. for H-1B Users: Premium Processing can be very effective in certain situations. The first and foremost advantage of USCIS Premium Processing Service is its use for new employment of nonimmigrant beneficiaries who need to wait for the approval of their petition to start work. This holds especially true for H-1B users subject to the H-1B cap. Let’s take a look at a situation where Premium Processing would benefit the employer and employee.

CASE SCENARIO
Juan finished his bachelor’s degree in accounting and has been working for Company A on his Optional Practical Training (OPT) since graduation. Juan’s OPT will expire on December 31 and Company A is not willing to file for an H-1B for him. On December 1 he receives and employment offer from Company B. Company B will sponsor Juan’s H-1B and want him to start on January 1. If Company B uses the regular process it could be three to four months before they get an approval for him and Juan would not be able to work at Company A beyond December 31 when his OPT expires or start with Company B until the H-1B is approved. By using the Premium Processing Service the H-1B petition will be approved within 15 days of filing and Juan will be able to start on January 1.

Also Very Effective for RFE Cases: USCIS Premium Processing Service is also effective for cases pending on a regular track in which an RFE is issued. Petitioners may opt to convert such a case to Premium Processing when submitting an RFE response.

USCIS Premium Processing Service – The Darker Side:

Effective but Expensive: In practice, Premium Processing has proven to be a blessing (though an expensive one) in many cases.

Not Required In All Cases: It may not, however, always be necessary or advisable to use the Premium Processing Service.

Conclusion:

Premium Processing Service should be used judiciously. If the Premium Processing examiner issues an RFE, the time sought to be saved may be lost by responding to the RFE. Also, Premium Processing may not be required at all, where the filing of petition is properly planned beforehand.

An unnecessary Premium Processing application may not just be expensive but it may also delay the entire application process. If you are an employer or a nonimmigrant in a similar situation consult a VisaPro attorney.

We also cover the latest happenings on all visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.

How to apply for the USCIS Fee Waiver Request?

Generally, the USCIS has discretion to waive the filing fees for an application, petition, motion or request if the applicant establishes that he is unable to pay the fee. Besides maintaining the USCIS’ discretionary authority to grant fee waivers, the fee waiver guidance provides direction on what constitutes ‘inability to pay’.

An applicant does not automatically qualify for a fee waiver based on any one particular situation or factor. Each case is unique and is considered upon its own merits. A fee waiver request may be granted when it has been established to the satisfaction of the USCIS Officer with jurisdiction over the request that the individual is unable to pay the fee.

CASE SCENARIO
Q: Maria is a national of Haiti and a lawful permanent resident of the US. Her sister, Angelina, was visiting her from Haiti when the devastating earthquake hit. Angelina now qualifies for Temporary Protected Status and wants to apply. She has not been working in the US because she did not have work authorization, and with Maria’s job at McDonald’s barely gives her enough to cover her monthly expenses for her and her son (her husband left last year and has not paid any child support). Can Angelina get a waiver of the filing fees for TPS?		A: Probably. Angelina needs to complete the Application for Temporary Protected Status and Application for Employment Authorization, and file with her fee waiver request. She will need to show her financial status and should include Maria’s situation since she is living with Maria. They need to list Maria’s income and the monthly expenses to show the need for the waiver. For more information keep reading.

Inability to pay

In all USCIS fee waiver requests applicants are required to demonstrate an ‘inability to pay’. In determining ‘inability to pay’, USCIS Officers may consider the following situations and criteria regarding the applicant:

Whether the applicant has demonstrated that within the last 180 days, he qualified for or received a ‘federal means-tested public benefit’. This may include, but is not limited to, Food Stamps, Medicaid, Supplemental Security Income, and Temporary Assistance of Needy Families or other public benefit
Whether the applicant has demonstrated that his household income, on which taxes were paid for the most recent tax year, is at or below the poverty level contained in the most recent poverty guidelines as revised annually by the Secretary of Health and Human Services’
Whether the applicant is elderly (age 65 and over, at the time the fee request is submitted)
Whether the applicant is disabled. Applicant should submit verification of disability
The age and number of dependents in the applicant’s household who are seeking derivative status or benefits concurrently with the principal applicant or beneficiary
Humanitarian or compassionate reasons, either temporary or permanent, which justify the granting of a fee waiver request. For example: the applicant is temporarily destitute; the applicant does not own, possess, or control assets sufficient to pay the fee without a showing of substantial hardship; or the applicant is on a fixed income and confined to a nursing home
Any other evidence or factors that the USCIS Officer believe establishes an applicant or petitioner’s inability to pay the required filing fees

Documentation in support of USCIS Fee Waiver Request

In all USCIS fee waiver requests applicants are required to demonstrate an ‘inability to pay’. Documentation, such as the examples listed below, may be submitted to provide proof of the ‘inability to pay’:

Proof of living arrangements (i.e. living with relatives, living in the applicant’s own house, apartment, etc.), and evidence of whether the applicant’s dependents are residing in his household
Evidence of current employment or self-employment such as recent pay statements, W-2 forms, statement(s) from the individual’s employer(s) on business stationary showing salary or wages paid, income tax returns (proof of filing of a tax return)
Mortgage payment receipts, rent receipts, food and clothing receipts, utility bills (such as gas, electricity, telephone, water), child or elder care receipts, tuition bills, transportation expense receipts, medical expense receipts, and proof of other essential expenditures
Any other proof of essential expenditures
Proof that verifies the applicant’s disability. The applicant may provide proof of his disability by submitting documentation showing that the disability has been previously determined by the Social Security Administration (SSA), the Department of Health and Human Services (HHS), the Department of Veterans Affairs (VA), the Department of Defense (DOD), or other appropriate federal agency
Proof of the applicant’s extraordinary expenditures or his dependents residing in the U.S. Essential extraordinary expenses are those which do not occur on a monthly basis but which are necessary for the well being of the individual or his dependents
Proof that the applicant has, within the last 6 months, qualified for and/or received a Federal ‘means-tested public benefit’
Documentation to show all assets owned, possessed, or controlled by the applicant or by his dependents
Documentation establishing other financial support or subsidies – such as parental support, alimony, child support, educational scholarships, and fellowships, pensions, Social Security or Veterans Benefits, etc. This includes monetary contributions for the payment of monthly expenses received from adult children, dependents, and other people who are living in the applicant’s household, etc.
Documentation of debts and liabilities – what is owed on any outstanding loans, credit cards, etc. by the applicant and his dependents, and any other expenses the applicant is responsible for (i.e. insurance, medical/dental bills, etc.)

How to make an USCIS Fee Waiver Request

To apply for a fee waiver, an applicant must submit an affidavit – or declaration that is signed and dated and includes the statement: “I declare under penalty of perjury that the foregoing is true and correct” – requesting a fee waiver and stating the reasons why he is unable to pay the filing fee
The affidavit and any supporting documentation must be submitted along with the benefit application or petition
To facilitate the processing of fee waiver requests, applicants should write in large print ‘Fee Waiver Request’ on the outside of the mailing envelope containing their application or petition and fee waiver request, as well as at the top of their affidavit and each page of their supporting information

USCIS Officers evaluate all factors, circumstances, and evidence supplied by the applicant in support of a fee waiver request before making a determination. If a fee waiver request is denied, the entire application package will be returned to the applicant, who must then begin the application process again by re-filing for the benefit with the appropriate fee.

As of this writing the USCIS has just published a rule seeking comments on a new fee waiver form. USCIS is seeking to establish a standard process for fee waivers. The new form, Form I-912, Request for an Individual Fee Waiver, will be put into use following a review of the comments. Check back with us for updates

If you have questions about how to file USCIS Fee Waiver Request or apply for a visa fee waiver, consult a VisaPro immigration attorney. We will be happy to guide you through the process.

The above article is brought to you by "VisaPro.com". VisaPro’s US Immigration Lawyer Services include H-1B, K-1 Visa, K-3, L-1, Green Card, E-3 and over 100 Immigration Services.

The information in this article is not intended to be legal advice. If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys at http://consultattorney.visapro.com

Visit VisaPro regularly for updates and the latest immigration news at http://www.visapro.com