Naturalization is the process by which U.S. citizenship is granted to a foreign citizen or national after he or she fulfills the requirements established by Congress in the Immigration and Nationality Act (INA).

You May Qualify for Naturalization if:

• You have been a permanent resident for at least 5 years and meet all other eligibility requirements.
• You have been a permanent resident for 3 years or more and meet all eligibility requirements to file as a spouse of a U.S. citizen.
• You have qualifying service in the U.S. armed forces and meet all other eligibility requirements.
• Your child may qualify for naturalization if you are a U.S. citizen, the child was born outside the U.S., the child is currently residing outside the U.S., and all other eligibility requirements are met.

Please, note, that you may already be a U.S. citizen and not need to apply for naturalization if your biological or adoptive parent(s) became a U.S. citizen before you reached the age of 18.

Many people get lawful permanent resident (LPR) status ("Green Card") through family members. You may be eligible to get an LPR status as:

• an immediate relative of a U.S. citizen, this includes spouses, unmarried children under the age of 21, and parents of U.S. citizen being petitioned by children 21 years of age or older;
• a family member of a U.S. citizen fitting into a preference category, this includes unmarried sons or daughters over the age of 21, married children of any age, and brothers and sisters of U.S. citizen petitioners 21 or older;
• a family member of a green card holder, this includes spouses and unmarried children of the sponsoring green card holder;
• a member of a special category, this can include battered spouse, parent or child (VAWA), a K nonimmigrant, a person born to a foreign diplomat in the United States, a V nonimmigrantor a widow(er) of a U.S. Citizen.

Family-Based Immigration

Many people may obtain lawful permanent resident (LPR) status being sponsored by their family members. Such sponsorship falls into two categories: immediate family member sponsorship, and those falling under a proscribed preference category.

The following include immediate family sponsorships:

1. Spouses of U.S. citizens,
2. Parents of U.S. citizens, and
3. Unmarried children under 21 years of age of US citizens.

Other family member sponsorships fall under a four-tier preference categories. They include:

First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

• (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
• (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.

A visa is always available for the immediate family sponsorship, whereas a family member under a preference category may need to wait for visa availability in order to adjust status in the United States. Whether or not a visa is available is determined by a "priority date," which is the date an Immigrant Petition for a Relative was filed. Click on the link www.travel.state.gov, to check whether a visa is available for your preference category.

Refugee status or asylum may be granted to people who have been persecuted or fear they will be persecuted on account of:

• Race
• Religion
• Nationality
• Membership in a particular social group or
• Political opinion

An applicant must apply for asylum within 1 year of arrival to the United States, unless there are changed country conditions, or special circumstances as to why the application could not be filed within a proscribed period of time.

Spouses and unmarried children under 21 years of age, may be included in the application. Married children or children over 21, must file independent applications.

An applicant for asylum may apply for employment authorization while the asylum application is pending, if 150 days have passed since the application was filed, and no decision has been made.

If granted asylum, applicant may apply for adjustment of status after one year.

PERM

For some visa categories, before the U.S. employer can submit an immigration petition to USCIS, the employer must obtain an approved labor certification from the U.S. Department of Labor (DOL). The DOL labor certification verifies the following:

• There are insufficient available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage
• Hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers

PERM Process

Prevailing Wage:
The employer (through its agent or representative) must obtain a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed are of intended employment. Determination of the prevailing wage is established by analyzing similarly employed persons in the area of intended employment.

Recruitment:
Recruitment under the PERM system is performed before the Application is submitted electronically to the DOL. Recruitment for non-professional occupations include: (1) Placing of a 30-day job order with the State Workforce Agency (SWA), and (2) Placing an advertisement on two different Sundays in a newspaper of major circulation in the area of intended employment.

Professional occupations require specialized recruitment, in the form of three
additional recruitment steps, which must be chosen from the following: (1) Job fairs; (2) Employer's website; (3) Job search website other than the employer's; (4) On-campus recruiting; (5) Trade or professional organizations; (6) Private employment firms ; (7) Employee referral program with incentives; (8) Campus placement offices; (9) Local and ethnic newspapers; and (10) Radio and television advertisements.

Recruitment must be conducted within the 6-month period prior to filing the PERM Application. The job order and two print advertisements must be placed at least 30 days but no more than 180 days before filing.

After the recruitment is completed, the employer must prepare a recruitment report in which it categorizes the lawful job-related reasons for rejection of U.S. applicants and provides the number of U.S. applicants rejected in each category.

Audits:
Supporting documentation may not be filed with the PERM Application, but the employer must provide the required supporting documentation if the employer's application is selected for audit

Immigrant Petition for Alien Worker:

After the PERM Application is certified by the DOL, the employer has 180 days in which to file Immigrant Petition for Alien Worker (Form I-140) with USCIS. If a visa is current, Form I-140 may be filed concurrently with the Adjustment of Status Application (Form I-485).

Spouses and Children:

Spouses and unmarried children under 21, may derive status through the principal employee.

H1B

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields. "Specialty occupations" may include the following professions:

• IT / Computer professionals
• University professors and teachers
• Engineers
• Healthcare workers
• Accountants
• Financial analysts
• Management consultants
• Lawyers
• Architects
• Nurses
• Physicians
• Surgeons
• Dentists
• Scientists
• Systems analysts
• Journalists and editors
• Foreign Law advisors
• Psychologists
• Technical publications writers
• Market research analysts
• Fashion Merchandisers
• Teachers in elementary or secondary schools, colleges

Cap Amounts

The current annual cap on the H-1B category is 65,000, plus an additional 20,000 for professionals with a Master's or higher degree. The cap does not apply to the new applications for an H1B with: non-profit organizations, government research organizations, and institution of higher education.

Labor Condition Application (LCA)

Applicant must submit a certified Department of Labor (DOL) LCA (Form ETA 9035) at the time of filing the petition.

Evidence of Beneficiary's Educational Background

Applicant must submit evidence of the beneficiary's educational degree at the time of filing. If all of the requirements for the degree have been met, but the degree has not yet been awarded, the following alternate evidence may be submitted:

• A copy of the beneficiary's final transcript; or
• A letter from the Registrar confirming that all of the degree requirements have been met (if the educational institution does not have a Registrar, such letter must be signed by the person in charge of the educational records where the degree will be awarded).

E-1 Treaty Trader

The E-1 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States solely to engage in international trade on his or her own behalf. Certain employees of such a person or of a qualifying organization may also be eligible for this classification.

General Qualifications of a Treaty Trader

To qualify for E-1 classification, the treaty trader must:

• Be a national of a country with which the United States maintains a treaty of commerce and navigation
• Carry on substantial trade
• Carry on principal trade between the United States and the treaty country which qualified the treaty trader for E-1 classification.

Trade is the existing international exchange of items of trade for consideration between the United States and the treaty country. Items of trade include but are not limited to:

• Goods
• Services
• International banking
• Insurance
• Transportation
• Tourism
• Technology and its transfer
• Some news-gathering activities

See 8 CFR 214.2(e)(9) for additional examples and discussion.

Substantial trade generally refers to the continuous flow of sizable international trade items, involving numerous transactions over time. There is no minimum requirement regarding the monetary value or volume of each transaction. While monetary value of transactions is an important factor in considering substantiality, greater weight is given to more numerous exchanges of greater value. See 8 CFR 214.2(e)(10) for further details.

Principal trade between the United States and the treaty country exists when over 50% of the total volume of international trade is between the U.S. and the trader's treaty country. See 8 CFR 214.2(e)(11).

Period of Stay

Qualified treaty traders and employees will be allowed a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit to the number of extensions an E-1 nonimmigrant may be granted. All E-1 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.

Treaty Investor

The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business. Certain employees of such a person or of a qualifying organization may also be eligible for this classification.

General Qualifications of a Treaty Investor

To qualify for E-2 classification, the treaty investor must:

• Be a national of a country with which the United States maintains a treaty of commerce and navigation
• Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States
• Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

An investment is the treaty investor's placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. The capital must be subject to partial or total loss if the investment fails. The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity. See 8 CFR 214.2(e)(12) for more information.

A substantial amount of capital is:

• Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
• Sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise
• Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

A bona fide enterprise refers to a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.

Period of Stay

Qualified treaty investors and employees will be allowed a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted. All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.

Foreign Investor (EB-5) Visa

USCIS administers the Immigrant Investor Program, also known as "EB-5," created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors.

REQUIREMENTS:

1. Investment amount:

• Either $1 million in a New Enterprise; or
• $500,000 in a Targeted Employment Area (TEA) or Rural Area;
  • TEA - means an area which, at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 per cent of the national average rate.
  • Rural Area - means any area not within either a metropolitan statistical area (as designated by the Office of Management and Budget) or the outer boundary of any city or town having a population of 20,000 or more.
• Investment may be done individually or through a Designated Regional Center.

2. Create at least 10 full-time employment positions:

• Investment must create at least 10 full-time positions for U.S. citizens, lawful permanent residents, or other immigrant lawfully authorized to be employed in the United States;
• This excludes entrepreneur, entrepreneur's spouse, son or daughter or nonimmigrant alien.
• "Full-time" means employment in a position that requires at least 35 hours of service per week at any time, regardless of who fills the position.

3. Lawful source of funds:

• Entrepreneur must clearly document evidence of the source of the funds invested;
• This means that entrepreneur must show that the funds were obtained through lawful means;
• Such evidence may include:
  • Foreign business transaction records
  • Corporate, Partnership or other Tax Returns for the past 5 years
  • Personal Tax Returns for the past 5 years
  • Property Sales
  • Other sources of capital
  • Certified copies of any judgments
  • Gift
  • Inheritance

4. "At risk" investment

• USCIS requires that the entrepreneur's investment be "at risk;"
• This means that entrepreneur's mere intent to invest, or of prospective investment arrangements entailing no present commitment, will not suffice to show that the petitioner is actively in the process of investing.
• Entrepreneur must show actual commitment of the required amount of capital, and that he or she faces actual risk of loss of his personal capital.

5. Management

• If the investment is done through an individual new enterprise, entrepreneur must show that he or she will be engaged in the management of the enterprise (either day-to-day managerial control or through policy formulation);
• Investment through a Designated Regional Center allows for entrepreneur's "passive" management.

Under a pilot immigration program, certain EB-5 visas also are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.

Under the EB-5 category, entrepreneur's ("principal") spouse and unmarried children under 21 years of age ("derivatives") may obtain the same status as the entrepreneur.

TPS

TPS stands for "Temporary Protected Status." The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country's nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. USCIS may grant TPS to eligible nationals of certain countries (or parts of countries), who are already in the United States. Eligible individuals without nationality who last resided in the designated country may also be granted TPS.

The Secretary may designate a country for TPS due to the following temporary conditions in the country:

• Ongoing armed conflict (such as civil war)
• An environmental disaster (such as earthquake or hurricane), or an epidemic
• Other extraordinary and temporary conditions

During a designated period, individuals who are TPS beneficiaries or who are found preliminarily eligible for TPS upon initial review of their cases (prima facie eligible):

• Are not removable from the United States
• Can obtain an employment authorization document (EAD)
• May be granted for travel authorization

Once granted TPS, an individual also cannot be detained by DHS on the basis of his or her immigration status in the United States.

TPS is a temporary benefit that does not lead to lawful permanent resident status or give any other immigration status. However, registration for TPS does not prevent an individual from:

• Applying for nonimmigrant status
• Filing for adjustment of status based on an immigrant petition
• Applying for any other immigration benefit or protection for which you may be eligible

Eligibility Requirements

To be eligible for TPS, an individual must:

• Be a national of a country designated for TPS, or a person without nationality who last habitually resided in the designated country
• File during the open initial registration or re-registration period, or you meet the requirements for late initial filing during any extension of your country's TPS designation
• Have been continuously physically present (CPP) in the United States since the effective date of the most recent designation date of your country
• Have been continuously residing (CR) in the United States since the date specified for your country. The law allows an exception to the continuous physical presence and continuous residence requirements for brief, casual and innocent departures from the United States.

Motion to Reopen/Reconsider

If your case has not been decided properly, or if the law was not applied correctly, if you now have additional evidence that was not previously available, or if there are changed country conditions, or a change in personal circumstances, or simply if you have outstanding equities warranting another review of your matter, your case may be eligible for a Motion to Reopen or a Motion to Reconsider.

Different rules govern Motions to Reopen/Reconsider before the Immigration Court, the Board of Immigration Appeals, or the Administrative Appeals Office. Most of the time, there is also a 30 day deadline to file a Motion, so a prompt action is always required.

Our firm handles different variety of Motions to Reopen/Reconsider. Consult with our attorneys to determine if your case warrants one.

Appeals

The Board of Immigration Appeals (BIA) is the highest administrative body for interpreting and applying immigration laws. The BIA has been given nationwide jurisdiction to hear appeals from certain decisions rendered by immigration judges and by district directors of the Department of Homeland Security (DHS) in a wide variety of proceedings in which the Government of the United States is one party and the other party is an alien, a citizen, or a business firm.

BIA decisions are binding on all DHS officers and immigration judges unless modified or overruled by the Attorney General or a federal court. Most BIA decisions are subject to judicial review in the federal courts. The majority of appeals reaching the BIA involve orders of removal and applications for relief from removal. Other cases before the BIA include the exclusion of aliens applying for admission to the United States, petitions to classify the status of alien relatives for the issuance of preference immigrant visas, fines imposed upon carriers for the violation of immigration laws, and motions for reopening and reconsideration of decisions previously rendered.

Knowledge of the substantive law and appellate procedures, skill to write compelling legal briefs, and ability to anticipate and respond to complex legal issues, are critical to the success of any type of appeal.

Our attorneys have an in depth knowledge of the complex immigration laws, have demonstrated their skill authoring persuasive briefs, and have competently handled appeals in the past, thus increasing your chances of a successful appeal.

We represent clients throughout the country before the Board of Immigration Appeals. Therefore, if you have a denial, you may contact us for the evaluation of your case for the appeal.

Waivers

There are different types of waivers, including waivers of inadmissibility and waivers of deportability. A person not eligible to be admitted into the United States or to adjust her status may obtain waiver of inadmissibility. Waivers usually require the applicant to demonstrate extreme hardship to a US citizen or permanent resident spouse or parent.

Here are some of the grounds of inadmissibility that may be successfully waived:

• Failure to possess required documentation such as green cards, US passports or visas
• Health-related grounds such as communicable diseases, and behavioral disorders
• Certain criminal grounds such as crimes involving "moral turpitude," controlled substances, prostitution and other serious offenses
• Immigration fraud or misrepresentation
• Membership in a totalitarian party
• Alien smuggling
• Unlawful presence in the US
• Certain grounds of inadmissibility if filed by a Temporarily Protected Status applicant
• Inadmissibility based on prior removal or unlawful presence after prior immigration violations (HRIFA and NACARA applicants)
• Unlawful presence after a prior immigration violation (VAWA self-petitioner)
• Likelihood to become a public charge - in jail, on welfare

Persons previously deported, may also be eligible to obtain a waiver, and apply for Permission to Reapply for Admission.

Since waivers are hard to obtain, excellent case preparation is essential. Our attorneys have the right expertise and experience to prepare your waiver case.

Removal Defense

A person seeking relief from removal may be eligible for several forms of relief. Some examples of potential relief from removal include:

• Challenge to the Department of Homeland Security's Charges
• Cancellation of Removal for Lawful Permanent Residents
• Cancellation of Removal for Non-Lawful Permanent Residents
• Elimination of Suspension of Deportation and INA §212(c)
• Adjustment of Status
• Asylum
• Withholding of Removal
• Protection Under the Convention Against Torture (CAT)
• Waivers of Removal
• Waivers under INA §§212(g), (h), (j), (k), 209(c), and 213
• Voluntary Departure
• Deferred Action

Deferred Action for Childhood Arrivals (DACA)

Announced on June 15, 2012, by the Secretary of Homeland Security, deferred action for childhood arrivals ("DACA") is for certain people who came to the United States as children and meet several eligibility guidelines. Upon approval for DACA, a person is eligible for work authorization, may apply for social security number as well as driver's license or a non-driver's ID.

An individual may request consideration of deferred action for childhood arrivals if:

1. He or she was under the age of 31 as of June 15, 2012;

2. Came to the United States before reaching 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.
Contact our office to find out if you are eligible for DACA.