Articles Posted in AskMyLawyer TV

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

Overview:

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

Step one: Filing the labor certification application

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

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

Overview:

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

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

  1. The Employer Must Commit to Green Card Sponsorship

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

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

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

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

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In this video we discuss how you can get an E-1 treaty trader visa without trading actual goods.

Overview:

  • To qualify for an E-1 Treaty Trader Visa you must be a citizen of a treaty trader country involved in international trade
  • You must be coming to the U.S. to carry on substantial trade or to develop and direct the operations of an enterprise that is a commercial trader with your country of nationality
  • The trade must be conducted principally between the U.S. and the treaty country
  • The U.S. enterprise must conduct more than 50% of its total trade volume with the treaty country
  • The trade may be of a good, commodity, services, or technology

If you are the owner of patented technology in your treaty trader country for example you may qualify for the E-1 treaty trader visa. To qualify for the E-1 visa, you do not need to have actual goods coming from the treaty country to the U.S., in this case the E-1 treaty trader visa can be obtained by showing that a form of technology along with the rights will be developed in the U.S.

This was the exact situation of our client, an Israeli national who owned patented technology for physical exercise equipment, designed and licensed in Israel, but produced in China. To overcome the fact that the equipment was produced in China using Israeli technology, our office made sure to establish that the rights to build the products in China had to be approved and signed off by the company in Israel which owned the patent. In addition, our office strengthened the case by furnishing the agreements between the Israeli company and the manufacturing facility in China, to show that although the product was being manufactured in China, the Chinese facility was in fact controlled by an Israeli designer to ensure quality control and compliance with the Israeli technology owned by our client. Finally, we showed that the majority of the funds to finance the operation was coming from Israel, the treaty trader country, and documented how the product would be coming to the United States.

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The J-1 is a very popular visa that is administered by the State Department, not USCIS.

How does it work and who qualifies for the J-1 Cultural Exchange Visa?

The J-1 visa allows individuals such as students and trainees to come to the United States to receive practical training or participate in an internship program, to gain experience in a particular field of study, and take that experience and skill set back to the country of origin. The practical training or internship program should be one that is not available in the individual’s country of origin. The J-1 cultural exchange visa program allows the foreign national to obtain experience that they would not have otherwise obtained in their home country.

The J-1 visa requires a third-party sponsor that controls and supervises the J-1 program that the foreign national will participate in, while the State Department administers the filing process of the J-1 visa. The third-party sponsor also ensures that the foreign national will return to their country of origin at the conclusion of the cultural exchange program.

What types of training programs can foreign nationals participate in with this visa type?

Foreign nationals may participate in the J-1 cultural exchange visa program as au pairs, scholars, researchers, trainees, and professionals.

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What’s happening with DACA today?

In this post, attorney Jacob Sapochnick talks all about the state of DACA (Deferred Action for Childhood Arrivals) and what you should know as a recipient of DACA.

In September of 2017 the Trump administration announced that it would be ending the DACA program, which allows undocumented immigrants who came to the U.S. as children to live and work in the United States without fear of deportation.

Attorney General Jeff Sessions spoke on behalf of the administration and said that USCIS would not accept new requests for DACA but would allow DACA recipients with work permits expiring between September 2017 and March 5, 2018 to apply for a final 2-year renewal of their status including employment authorization.

This announcement put considerable pressure on Congress to pass legislation before March 5, 2018 to protect Dreamers from deportation.

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Overview: 

What is an E-2 visa?

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

Who can get it?

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

Level of Investment

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

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In this post, attorney Jacob Sapochnick discusses the top reasons applications are denied at their citizenship interview.

Requirements to apply for citizenship:

In order to become a United States Citizen, you must meet the following general requirements at the time of filing your N-400 Application for Naturalization:

You must be:

  • A lawful permanent resident
  • At least 18 years of age
  • Maintained continuous residence in the United States since becoming a permanent resident
  • Be physically present in the United States
  • Have certain time living within the jurisdiction of a USCIS office
  • Be a person of Good Moral Character
  • Have Knowledge of English and U.S. Civics with some exceptions outlined below
  • Declare loyalty to the U.S. Constitution

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Overview:

What is the I-601 Waiver?

The I-601 waiver is an application that is filed by individuals who are ineligible to gain admission to the United States as an immigrant, or who cannot adjust their status in the United States to become a permanent resident, because they are barred from the United States. The I-601 waiver is essentially a form that is filed to gain permission to apply for permanent residence in the United States or gain admission through an immigrant visa. This form will allow individuals to obtain relief from the following grounds:

  1. Health-related grounds of inadmissibility (INA section 212(a)(1))
  2. Certain criminal grounds of inadmissibility (INA section 212(a)(2))
  3. Immigration fraud and misrepresentation (INA section 212(a)(6)(c))
  4. Immigrant membership in totalitarian party (INA section 212(a)(3))
  5. Alien smuggler (INA section 212(a)(6)(E))
  6. Being subject to civil penalty (INA section 212(a)(6)(F))
  7. The 3-year or 10-year bar due to previous unlawful presence in the United States (INA section 212(a)(9)(B))

Who is Eligible?

Not everyone is eligible. To qualify, you must have what is called a “qualifying” relative who will be the focus of the petition. A qualifying relative includes a U.S. Citizen or legal permanent resident spouse or parent. In cases where a waiver is filed for certain criminal grounds of inadmissibility a qualifying relative may also include a child who is a U.S. citizen.

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

What is adjustment of status?

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

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

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

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

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

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