IMMIGRATION FAQS

 

1.  What is the difference between a nonimmigrant visa and an immigrant visa?

2. How can an individual become a permanent resident through relatives?

3. How can an individual become a citizen of the US?

4. What if I stay in the US illegally?

 

1. What is the difference between a nonimmigrant visa and an immigrant visa?

 

A. Nonimmigrant visas: There are several visas that fall into this category;

(B-2),business visitors (B-1), students (F-1, M-1), workers (H-1B, L-1,O, P,

etc.) or for a variety of other reasons. These are temporary visas also known

as nonimmigrant  visas and are issued at US embassies and consulates

abroad. The applicant must establish and convince the Officers at the US

embassy or consulate abroad that if they issue the visa they will not remain

in the US after expiration of the authorized stay.  Outside of the H1b visa

category, the other categories of visas like the L, P, and the O visas are not

subject to an annual quota. Those visas also allow residence and

employment in the US for a limited time if the criterion is met, and can ultimately lead to US residency.  Other non-immigrant visas can also be obtained rather quickly, and may be valid for one or more entries into the US. However, a visa does not guarantee entry into the US. The immigration officer at the US port of entry makes the final determination.

 

B. Immigrant visas more commonly known as Green cards:  An individual holding this status is considered a legal Permanent Resident Alien, and they have the right to reside and work in the permanently in the US. An individual may gain this status if they have immediate family members in the US or job skills needed by a US employer and the process can take place in the US or the US Consulate abroad. Additionally, a number of green cards each year are granted to investors, refugees, highly educated individuals and Diversity Lottery winners.   The processing time for this type of visa varies since they are subject to a numerical limitation dictated by the category a visa applicant falls into.

 

2. How can an individual become a permanent resident through relatives?

 

There are five categories under which an individual can obtain permanent residency through relatives. They are:

 

•  Immediate relatives of US citizens: There are no quotas and no priority date waiting for immediate relatives of US citizens. They are defined as: spouses of US citizens (including widows and widowers who were married to the US citizen for at least 2 years and are applying within 2 years of the citizen's death); unmarried people under 21 who have at least one US citizen parent; parents of US citizens, if the US citizen is over 21.

 

• First Preference-Unmarried sons and daughters of US citizens (23,400 per year, plus unused visas from the fourth Preference);

 

• Second Preference-(F2A) Spouses and unmarried children of permanent residents (114,000 per year, plus excess over 226,000 the floor for family based immigration, plus unused visas from the first Preference); (F2B) Unmarried sons and daughters of green card holders who are at least 21.

 

• Third Preference-Married sons and daughters of US citizens (923,400 per year, plus unused visas from the first and second Preferences);

 

• Fourth Preference- Brothers and sisters of US citizens (65,000 per year, plus unused visas from the first second and third Preferences).

 

The waiting period to obtain an immigrant visa through relatives will vary depending on one's preference category and one's country of origin. Nationals of Mexico, India, People's Republic of China and the Philippines generally have longer waits in these categories.

 

Common family-based immigration FAQ's:

 

What if my spouse/relative overstayed his/her authorized period of stay I-94 card? For spouses of US citizens and other immediate relative filings, one may still adjust status in the US even if you have overstayed your visa. However, for the other family preference categories, an alien cannot adjust status if he/she has overstayed their visa. In fact, if one overstays a visa by 180 days or more, one is barred from adjusting or reentering for 3 years. Furthermore, if one overstays for 365 days or more, one is barred from adjusting or reentering for 10 years.

 

Do I make enough money to sponsor my relative? All sponsors must submit form I-864, Affidavit of Support, which assures the government that you are financially capable of bringing an immigrant relative to the United States. Most sponsors must earn 125% of the poverty income level-please see form I-864P for the current guidelines (see the current poverty level guidelines- http://uscis.gov/graphics/formsfee/forms/files/I-864p.pdf ).

 

All sponsors must submit the following documentation with their I-864.

 

3. How can an individual become a citizen of the US?

 

There are 4 ways to become a US citizen:

  • By Naturalization Petition

  • By birth in the US: Under the 14th Amendment, all persons born ... in the United States ... are citizens regardless of the status of their parents, who may be citizens, green card holders, or illegal aliens.

  • By acquisition at birth: A child born outside the US where one or both parents are US citizens may acquire US citizenship at birth.

  • By derivation through naturalization of parents: A child born outside the US may become a citizen by virtue of the parents' naturalization.

 

Obtaining U.S. Citizenship/Naturalization

 

There are several ways to obtain United States Citizenship. The Law Office of Donnette Russell-Love, P.L is here to help you navigate the path to U.S. citizenship.  The Application for Naturalization is filed by Permanent Residents who are at least the age of 18 to obtain their United States Citizenship.

 

Naturalization Requirements 

Age:  General naturalization requirements include mandatory age minimum of 18 years old, already be a Permanent Resident of the United States, and furnish proof of their residence status, i.e., their Permanent Residence Card also known as their “Green Card”.

 

Residency: After filing the Application for Naturalization, the applicant must demonstrate that he or she is a permanent resident; has resided as a permanent resident in the U.S. for at least 5 continuous years prior to filing for Naturalization with no absences from the United States of one year or greater, or for 3 years prior to filing if permanent residence status was obtained through their United States citizen spouse and they are still married and living with their spouse; and out of the previous three or five years (see above section) has been physically present in the United States for at least half of that time.  See also INA 316 (Immigration and Nationality Act).

 

Constitution: A person applying for naturalization must show that he or she is sympathetic to the principles put forth in the U.S. Constitution.  Please see INA 316 (Immigration and Nationality Act) for additional information.

 

Language Requirements: Naturalization applicants must be able to speak, write, read, and understand the English language at a fundamental or basic level. Some exemptions from these requirements do exist.  In general, if the applicant has lived in the country a relatively long time and is also more mature in years or if the applicant has a verifiable physical or mental impairment and is not capable of learning the language, they are exempt from this requirement.  Please refer to INA 312 (Immigration and Nationality Act) for additional information.

 

Knowledge of History and Government Structure: Persons applying for naturalization must take a civics exam that determines the level of knowledge of the basic concepts of the history and the government structure of the U.S. that the applicant has learned thus far.  Applicants who have a verifiable physical or mental impairment are exempt from this requirement, though a separate application must be completed and filed by a medical doctor to demonstrate the applicant’s impairment and why the applicant is unable to learn these subjects.  Applicants who have lived in the country for a relatively long time and are older in years are given a more basic exam during their naturalization interview.  See INA 312 (Immigration and Nationality Act) for additional information.

 

Good Moral Character: There is a good moral character requirement for all applicants for the three or five year statutory period prior to filing for naturalization. Please note that USCIS is not limited to the statutory period and can deny an applicant based on acts of bad moral character committed at any time. Moreover, if an applicant has ever been convicted of an aggravated felony, such as murder, he or she is permanently barred from naturalization.

 

There are also many other basis USCIS uses to find that an applicant does not have a good moral character, such as multiple criminal offenses, prostitution, drug possession, smuggling illegal aliens, gambling offenses, being habitually intoxicated, practicing polygamy, failing to pay child support, or committing immigration fraud.  See also INA 316 (Immigration and Nationality Act).

 

Oath of Allegiance: To become a citizen, one must take the oath of allegiance. By doing so, an applicant swears to obey the laws (federal, state, local) of the U.S., support the Constitution, forsake any foreign loyalty or allegiance, and take up arms for the Armed Forces of the U.S. or perform services for the government.  See also INA 337 (Immigration and Nationality Act).

 

It is also possible for an individual to become a U.S. citizen via a Certificate of Citizenship, provided the person acquired citizenship by way of their parent(s) while under the age of 18. Adopted children can also file an Application for a Certificate of Citizenship or an Application for Naturalization, but they also have additional requirements than biological children.  See INA 334 (Immigration and Nationality Act) for additional information.

 

4. What if I stay in the US illegally?

 

Most immigrants don't realize or understand the very grave consequences of remaining in the United States illegally. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 created substantial penalties for aliens who overstay their visas or enter the country illegally.

 

Aliens subject to these penalties are termed to have been "unlawfully present" in The United States. INS defines unlawful presence with three categories: (1) those who entered without inspection (EWI), or crossed the border illegally; (2) those who stayed in the country beyond the date on their I-94 arrival/departure card (overstays); and (3) those who are found by the INS or immigration judge to have violated the terms of their stay.

 

If someone is unlawfully present in the US for between 180 and 365 days, they are then barred from reentering, changing or adjusting their immigration status for 3 years. People unlawfully present for more than one year are barred for 10 years.

 

Nonimmigrant Waivers

Reasons for Inadmissibility

 

There are a variety of reasons why a person might be deemed inadmissible to enter the US. The most common grounds for inadmissibility are:

 

•                Prior history of criminal activities;

•                Commission of fraud in obtaining a US visa;

•                Prior periods of unlawful presence in the US longer than 6 months, subjecting applicants to a mandatory 3 to 10 year bar from entering the US.

Except for individuals with inadmissibility findings related to security and other narrow areas, all other individuals barred from the United States can apply for a nonimmigrant waiver of inadmissibility. However, each case is unique and often requires a detailed analysis in order to determine the factual basis of inadmissibility, whether the consular decision was correct, the availability of a waiver, and the likelihood of a successful waiver application.

 

Who Can Apply?

 

An applicant for any type of nonimmigrant visa, such as B-2, F-1, H-1B, J-1, or L-1 who has been found inadmissible, can apply for a waiver of inadmissibility.

 

What is the Process?

 

A nonimmigrant waiver can be applied for at a US consulate in conjunction with a nonimmigrant visa application — no specific form is required. If the consulate approves the application, it forwards its recommendation to the Department of Homeland Security, which has the final say on these applications. If the consulate denies the application, the applicant may request the Department of State to review the application. If it denies the application, the case is closed. If it recommends approval, it forwards the application to DHS for its final determination. In general, the entire process may be completed in 1–2 months.

 

The standards for granting a waiver for a nonimmigrant visa are relatively liberal. The consulate and DHS consider the following factors:

 

•                The risk of harm to society if the individual is admitted;

•                The seriousness of his or her violation;

•                The reason that the alien is seeking admission;

•                The recency  of the violation.

 

In addition, except for H-1B and L visa applicants, it is necessary for the applicant to show that he/she does not intend to immigrate. This can be done by demonstrating the applicant’s ties to his or her homeland and affirming that he or she will return home after only a temporary visit to the United States.

 

How can we help?

 

It is critical to understand the reason that the finding of inadmissibility is based upon and whether it is correct before submitting an application for a waiver for a finding of inadmissibility and whether or not the finding is correct. If it is erroneous, then the finding should be challenged by requesting reconsideration and presenting additional evidence. If the finding is correct, then the above-listed standards must be analyzed and convincing evidence of rehabilitation should be prepared.

 

We can formulate a strategy for challenging a finding if appropriate, or representing your interests in preparing the nonimmigrant waiver application.

 

GUIDELINES FOR REQUESTING CONSIDERATION OF DEFERRED ACTION FOR CHILDHOOD ARRIVALS

 

Pursuant to the Secretary of Homeland Security’s June 15, 2012 memorandum, in order to be considered for deferred action for childhood arrivals, you must submit evidence, including support documents, showing that you:

 

1.Were under the age of 31 as of June 15, 2012;

2. Came to the United States before reaching your 16th birthday;

3. Have continuously resided in the United States since June 15, 2007, up to the present time;

4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;

5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;

6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and;

7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

8. These guidelines must be met for consideration of deferred action for childhood arrivals. USCIS retains the ultimate discretion on whether deferred action is appropriate in any given case.

 

If you believe that you may be eligible to apply for status under this category, but you are not sure because you may have a complication with on or a few of the criteria, contact my office today at 954-449-1833 or email us at drusselllove.gmail.com to schedule an appointment to discuss your situation.

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