Appeals

If you receive a denial of your application for an immigration benefit, you can file an appeal, motion to reopen, or motion to reconsider depending on your case.

Asylum

Asylum is an immigration benefit that is available to people who can show that they are fearful of returning to their country of citizenship because of persecution based on one of the following grounds: (1) race; (2) religion; (3) nationality; or (3) membership in a particular social group. You also have to show that the source of the persecution is a government actor or a person or group that the government is unwilling or unable to control. 

Asylum is a very complex area of law and the rules regarding what does and what does not qualify as a particular social group change frequently. An experienced attorney can help you identify if applying for asylum is right for you and guide you through the application and interview process.

Citizenship

Becoming a U.S. citizen is typically done through a process called Naturalization by filing a Form N-400, Application for Naturalization. If you are a permanent resident, you become eligible to apply for citizenship either three or five years after receiving your permanent residence. 

If you are a lawful permanent resident (green card holder) and you are married to a U.S. citizen, you can file your application three years after receiving your status, provided that you have been married to and continuously residing with your U.S. citizen spouse for the three years preceding your application. You can file this application 90 early. 

If you are a permanent resident but are not married to a U.S. citizen, you become eligible for citizenship after you have been in permanent resident status for five years. You can also file the application 90 days early. 

Things that complicate your case or potentially make you ineligible for citizenship include, but are not limited to, criminal activity, extended absences, and misrepresentations made during your permanent residence application process. An experienced attorney help you determine if applying for citizenship is right for you and help you through the process from filing the application to attending the interview and following up with U.S. Citizenship and Immigration Services after the interview.

Investor Visas (E-1/E-2)

E-1/E-2 visa (treaty traders and treaty investors)

If you are a trader or investor (or are seeking to invest), the E-1/E-2 treaty trader or investor classifications may permit you to work in the United States.  You employees may also obtain E-1/E-2 visas, provided that you share the same nationality, and your spouse can work in the United States as well. 

The E-1 treaty trader visa allows a foreign national to engage in substantial international trade in the U.S., while the E-2 treaty investor visa allows an individual to enter the U.S. for the purpose of actively investing a substantial amount in an enterprise. E-2 investors either invest by creating their own business in the U.S., investing in an existing company, or completely buying an existing company from the current owner. 

Importantly, you must have the nationality of a treaty country to be eligible, and at least 50% of the U.S. entity for E-1 trader or E-2 investor visas must be owned by non-U.S. resident nationals of a treaty country.

Employment Based, 1st Preference (EB1)

EB-1 First Priority employment based petitions are for Extraordinary ability, Outstanding professors/researchers, or Multinational executives/managers

If you can qualify under this category, you should absolutely consider applying under the EB-1 category.  The main advantage of the EB-1 category is that there is no work and time intensive PERM labor certification requirement.  However, most EB-1 petitions still involve a great deal of work by both the attorney and applicant and can be difficult to obtain because of the high standard applied by USCIS. 

Extraordinary Ability 

Foreign nationals with extraordinary ability must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. Their achievements must be recognized in their field through a large amount of documentation. A specific employment offer is not necessary. 

Outstanding professors and researchers

Outstanding professors and researchers must demonstrate international recognition for their outstanding achievements in a particular academic field. They must have an offer of employment at a university or other institution of higher education, and they must have at least three years’ experience in teaching or research in their academic area.

Multinational executives and managers

Multinational executives and managers must have been employed outside the US for at least one year in a managerial or executive capacity in the three years preceding the filing of the petition. They must be seeking to enter the US to continue working with a US affiliate/branch/subsidiary of the same employer, and the US company must have been doing business for at least one year.

Employment Based, 2nd and 3rd Preference (EB2 and EB3)

EB-2 and EB-3 categories are often lumped together because they involve similar processes as both require a “PERM labor certification.”  Additionally, both require that you have a permanent, full-time job offer.  

The main difference between the two categories is that for the EB-3 category, the standard for qualification is lower than it is for the EB-2 category.  For EB-3, however, the PERM labor certification requirement cannot be waived, whereas with the EB-2 it can be waived with a National Interest Waiver. 

EB-2 

Foreign nationals holding an advanced degree or its equivalent 

Foreign nationals applying under EB-2 with an advanced degree must be applying for a US job which requires an advanced degree or its equivalent (a bachelor’s degree plus five years of progressive work experience in the field).  The Foreign National must show they meet the requirements of the position by providing official academic record or letters from employers showing that the applicant has at least five years of progressive post-baccalaureate work experience in the specialty.

Foreign nationals with exceptional ability

Foreign nationals applying under the EB-2 exceptional ability category must demonstrate “a degree of expertise significantly above that ordinarily encountered” in the sciences, arts, or business by showing that they meet three out of seven specified criteria.

EB-3

These Green Cards are available to “skilled workers,” “professionals,” and “other workers,” which all have very specific definitions under the immigration regulations.

Skilled workers

Skilled workers refers to those foreign nationals whose job requires a minimum of two years training or work experience, not of a temporary or seasonal nature. They must be performing work for which qualified workers are not available in the US.

Professionals

This category is appropriate when a position requires a US baccalaureate degree or a foreign equivalent.  The foreign national must have the required degree and the degree must be a normal requirement for entry into the occupation. Education plus experience may not be substituted for the degree requirement.

Other Workers

The other workers subcategory is for foreign nationals performing unskilled labor requiring less than two years training or experience.  The position must not be temporary or seasonal.

Family Based Immigration

Family based immigration means that you are applying for permanent residence based on your relationship to a family member. This can take the form of adjustment of status or consular processing depending on the specifics of your case. When you are applying for permanent residence (a green card), it is important to consult with an attorney to make sure you are eligible for permanent residence. Things that can cause problems in family based immigration include, but are not limited to, arrests, unlawful presence, unlawful entries, and previously denied immigration applications.  An experienced attorney can help you develop the best strategy and advocate for your best interests.

Fiance(e) Visas

If you are a U.S. citizen and you are engaged to foreign national, your fiance(e) might be eligible for a K-1 visa. This is commonly referred to as a “fiance visa.” In general, to qualify for a fiance visa, you must show the following: 

1. You and your fiance must have met in person in the last two years. Waivers of this requirement are available;

2. You and your fiance have a bona fide relationship. This means that your relationship is not for the primary purpose of obtaining a green care; and 

3. You and your fiance are both legally single and free to marry; and 

4. You and your fiance plan to marry no later than 90 days after your fiance enters the U.S. on a K-1 visa. 

After you and your fiance marry, your fiance can apply for adjustment of status, which is commonly referred to as a green card application, before U.S. Citizenship and Immigration Services.

Specialty Occupation (H1B)

The H-1B classification applies to "specialty occupations." The job position must require theoretical and practical application of a body of highly specialized knowledge, such as a bachelor's degree or equivalent experience. 

Importantly, employers are required to pay the prevailing wage for the offered position and file for labor condition approval (LCA) from the U.S. Department of Labor. Most H-1B petitions are subject to an annual cap.  Because of this annual cap, there is a lottery system wherein petitioners are selected to have their petition adjudicated. This lottery has traditionally occured in Spring. 

H-1B petitions are approved for up to three years initially and can be extended for up to a total of six years.

Exchange Visitor (J)

The J-1 exchange visitor category includes a variety of exchange visitor programs and activities that are approved by the U.S. Department of State to promote intercultural exchange and public diplomacy.  If you come to the U.S. on a J-1 visa, your employment is authorized only under the terms of that exact exchange program. Notably, J-1 visa holders may be required to return to their home countries for two years if they are deemed subject to a two-year home residency requirement.  There is a waiver for this requirement that you would need to apply for if you wish to return before two years has passed.

Intracompany Transferees (L-1)

If you are already working for a foreign affiliate, subsidiary, parent or branch of a U.S. company, you may be eligible for the L-1 visa. L-1 visas are for “intracompany transferees” who have been continuously employed outside the U.S. for at least one year (within the last 3 years) by an affiliate, subsidiary, parent or branch of the U.S. company in a managerial, executive or specialized knowledge position. 

There are two subcategories of the L-1 visa: L-1A (intracompany executives and managers): and L-1B (intracompany specialized knowledge professional).

A huge benefit of the L-1 visa is that their spouses may work in the U.S. on an L-2 visa.  L-1 status is initially granted for up to three years and can be extended for a maximum of seven years for an L-1A or five years for an L-1B.

Extraordinary Ability (O-1)

If you feel you can adequately show that you are highly regarded and recognized in your field, you can consider the O-1 visa. The O-1 visa is for individuals with extraordinary ability in the sciences, arts, education, business or athletics as demonstrated by sustained national or international acclaim.  You must meet 6 out of 10 specific requirements. The O-1 visa process is usually very involved and work intensive; you should work closely with an expert throughout the process in order to compile and present evidence of your extraordinary ability. 

O-1 status may be granted for a maximum of three years at a time and may be extended indefinitely in one-year increments.

Religious Vocation or Profession (R)

If you are a minister or another kind of religious worker, you may qualify for an R-1 visa. You may be classified as a minister by USCIS if you are authorized by a religious denomination and fully trained according to the denomination’s standards to conduct religious worship and to perform other duties usually performed by authorized members of the clergy of that denomination.  You may also qualify for the visa under the religious occupation subcategory, meaning that you have a made formal lifetime commitment, through vows, investitures, ceremonies, or similar indicia, to a religious way of life, or under the religious vocation subcategory, wherein your duties must primarily relate to a traditional religious function and be recognized as a religious occupation within the denomination. 

Your religious denomination must have a class of individuals whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religion. In order to qualify for this visa category, you must be a member of a religious denomination that has an affiliate tax exempt nonprofit religious U.S. organization for at least 3 years immediately preceding the time of the application.

Removal Defense

If you are in removal proceedings, it means that you have to go before an Immigration Judge who will determine whether you are allowed to stay in the U.S. If you are in the U.S. with lawful status, you can be subject to removal proceedings if you do something to trigger what is called deport-ability. This means that your actions potentially triggered legal consequences that could result in the loss of your lawful status. Common reasons permanent residents are subject to removal proceedings include, but are not limited to and being arrested for or convicted of a crime, having a green card that was improperly issued.

If you are in the U.S. without lawful status, you could be subject to removal proceedings if the government learns that you are present. If you are placed in removal proceedings, there are several defenses for which you could be eligible. For example, if you have been present in the U.S. for at least 10 years, have a U.S. citizen or lawful permanent resident spouse, parent or child who would suffer extreme and exceptionally unusual hardship, and you have no disqualifying factors, you may be eligible for a defense called Cancellation of Removal. You can also file an asylum application before the court and an adjustment of status application if eligible.

Removal of Conditions (I-751)

If you received permanent residence through your spouse and you were married for less than two years before your case was approved, you will receive status as a conditional permanent resident. This means that, before your status expires, you will need to file what is called an I-751, Petition to Remove Conditions on Residence. If you are still married, then you will file this form jointly with your spouse. You will want to include evidence that you have residence together and commingled assets during the two year period. 

If you are divorced, you will need to request a waiver of the joint filing requirement. Basically, you need to ask the government to waive the requirement that you remain married to your spouse for the two year period. To receive this waiver, you must show that you did not enter the marriage for the primary purpose of securing a green card. You will also need to submit as much evidence as possible that you lived together and commingled assets during the marriage. 

If you have been the victim of battery or extreme cruelty, you can also request that the government allow you file the application without the signature of your spouse. If you are applying based on this, you will need to include a sworn statement detailing the abuse or extreme cruelty and evidence that you did not enter the marriage for the primary purpose of securing a green card. 

You can also request a waiver of the joint filing requirement if you can prove that you would suffer extreme hardship if the government does not grant your application. This hardship must have arisen during the two year period of your conditional permanent residence.

Trade NAFTA Professional (TN)

Pursuant to the North American Free Trade Agreement (NAFTA), the nonimmigrant TN visa allows citizens of Canada and Mexico, who work in certain professions, to work in the U.S. See Visas for Canadian and Mexican NAFTA Professional Workers.

Process. TN classification is advantageous in that there is no quota, and it requires no prior application with the USCIS. To be eligible for the TN, the Canadian or Mexican citizen must have the degree, experience or licensing requirements designated for each profession.

Canadian nationals may apply for the TN directly at any port of entry; Mexican nationals must apply at a U.S. embassy in Mexico. Citizens of both countries must maintain a home-country residence that they have no intention of abandoning.

Working with Criminal Defense Attorneys

If you have been convicted of a crime or admit the essential elements of a crime, this can have serious consequences in terms of your immigration status. Sometimes, crimes that seem minor can have a huge impact on your immigration status or ability to stay in the U.S. For example, sometimes what can seem like a good plea agreement in criminal court can trigger irreversible immigration consequences. 

If you have been accused of a crime, it is imperative to have an immigraiton attorney working with your criminal defense attorney so you can secure an outcome that does not jeopardize your ability to remain in or enter the U.S.