Claris Law Legal Blogging Community

Editor: Bob Kraft
Profession: Attorney at Law

Permanent Residency For Investors

Category: Immigration Laws

An employment-based category is available for an individual who has already invested or plans to invest in a new commercial enterprise employing at least 10 full-time workers. This category allows such an investor to obtain permanent residency within a year.

In order to qualify as an investor, the foreign national must meet certain requirements as provided in the regulations.

First, the investor must invest or be actively in the process of investing at least $1,000,000 in the enterprise. The enterprise may be in the form of creating an original business, or purchasing an existing business and simultaneously or subsequently restructuring or reorganizing the business such that a new commercial enterprise results, or expanding an existing business by 140 percent of the pre-investment number of jobs or net worth, or retaining all existing jobs in a troubled business that has lost 20 percent of its net worth over the past 12 to 24 months. Instead of investing $1,000,000, the investor may opt to invest at least $500,000 where the investment is being made in a "targeted employment area," which is an area that has experienced unemployment of at least 150 per cent of the national average rate, or a rural area as designated by the Office of Management and Budget.

The source of funds must be obtained through lawful means, and the capital may be in the form of cash, equipment, inventory, certificates of deposit, treasury bonds, or other instruments that can be converted readily into cash. Since the rationale behind this category is to benefit the economy of the United States, the new commercial enterprise must create full-time employment for not fewer than 10 qualified individuals, or maintain the number of existing employees at no less than the pre-investment level for a period of at least two years, where the capital investment is being made in a "troubled business," which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months. The investor must be active in the new commercial enterprise, and this requirement could be accomplished by participating in the day-to-day managerial control.

Once the above documentation is gathered, the foreign investor must file, on his or her own behalf, an Immigrant Petition by Alien Entrepreneur on Form I-526, with the Immigration Service. Once the petition is approved, the foreign national will go to the U.S. consulate in his or her country of residence, and will file an application for an immigrant visa. The foreign national will thereafter receive conditional residency. Conditional residency is the same as permanent residency, but it is used to deter visa fraud. The difference between conditional and permanent residency is that after a year and nine months, the investor has to file another petition to remove entrepreneur conditions on Form I-829. The petition is accompanied with supporting documentation of the aforementioned documents. Once the conditions are removed, the investor will become a permanent resident. After five years of being a permanent resident, the foreign national can apply for U.S. citizenship.

Please call us at 214-999-9999 for more information on how to obtain permanent residency for Investors.

Oklahoma's Crackdown On Illegal Immigration

Category: Immigration Laws

The Dallas Morning News today has a very interesting story about Oklahoma's tough anti-illegal-immigrant laws, and how those laws may provide templates for other states to follow. The article also notes several downsides of the tough laws, and emphasizes that while such laws might work in Oklahoma, a state with an estimated 7% Hispanic population, the situation would be much different in Texas, with an estimated 36% Hispanic population. Here are excerpts:

Welcome to the nation's laboratory for a crackdown on illegal immigration. Last year, Oklahoma's Legislature passed, by huge margins, the nation's toughest law on illegal immigrants, making it a felony to harbor, transport, shelter or conceal undocumented immigrants.

This summer, the same law also will allow U.S. citizens to sue employers if they think they were fired in favor of illegal workers. Employers in the state say they already see the results: "A total lack of workers," said Doug Forrest, a Tulsa site-preparation contractor and golf course builder. "This is potentially sending our state into a recession."

Proponents of the law don't see such economic harm.

Meanwhile, some Texas lawmakers are already promising bills that mirror Oklahoma's House Bill 1804.

State Rep. Leo Berman, R-Tyler, said the Oklahoma measure has proved that even as Congress deadlocks on immigration, a state can protect itself against what he calls threats to public health and safety posed by a porous border.

"You don't have to round up 20 million illegal aliens," Mr. Berman said. "Stop the two free benefits you're giving them - free health care and a free education - and they'll go back across the Rio Grande."

In December, Oklahoma Treasurer Scott Meacham said "some short-run pain" to that state's economy might occur, if reports of temporary labor shortages in construction, agriculture and oilfield services industries proved severe and long-lasting.

The U.S. Chamber of Commerce and several Oklahoma business groups recently sued to overturn the law, saying it improperly steps on federal government turf.

Only one group has tried to track the law's effects on population. The Greater Tulsa Hispanic Chamber of Commerce, after checking with schools, churches, and bus lines with service to Mexico, estimated that between 15,000 and 25,000 illegal immigrants have left Tulsa County since the law was passed.

Several Christian denominations have said they'll continue to urge parishioners to aid strangers, even though the law threatens those who transport or shelter "aliens" with at least one year in prison and/or at least a $1,000 fine.

In November, messengers to the annual meeting of the Baptist General Convention of Oklahoma passed a resolution saying the law "will not change their ministry to any people," according to the Southern Baptist group's Web site.

Last year, the Oklahoma Legislature passed a law that:

•Restricts illegal immigrants' access to driver's licenses and ID cards.

•Cuts off several forms of public assistance for illegal immigrants. Emergency medical care, disaster aid and certain immunizations are exempted.

•Makes it harder for illegal immigrants to pay in-state college tuition.

•Encourages state and local law enforcement to enforce federal immigration law.

•Makes it a felony to harbor, transport, conceal or shelter illegal immigrants.

•Requires state and local governments to use a federal database that allows them to check potential employees' work eligibility.

•Starting this summer, private employers and government contractors will have to verify employment eligibility of all new hires. Employers who don't could be sued.

This year, Oklahoma lawmakers are considering bills that would:

•Designate English as the state's official language.

•Let law enforcement seize the property of those who transport, hire or rent to illegal immigrants.

•Make public schools report how many illegal-immigrant children are enrolled.

•Repeal last year's law.

•Repeal all of last year's law, except for its ban on most public benefits.

O Visa - Extraordinary Abilities In Sciences, Arts, Education, Business, Or Athletics

Category: Immigration Laws

The O visa is a temporary visa designed for foreign nationals with extraordinary ability in the sciences, arts, education, business, athletics, or motion picture or television production, which has been demonstrated by sustained national and international achievements. The O visa allows these individuals to come to the United States to work for a U.S. employer in their areas of expertise.

To qualify for an O visa in "science, education, business or athletics," the foreign national must be one of the small percentage who have risen to the top of his or her field. Documentation may include three of the following:

• receipts of national or international awards in their field such as the Nobel Prize or other distinguished award;
• membership in organizations that require outstanding achievement;
• published materials about the foreign national;
• original scientific work of major significance in foreign national's field;
• evidence that the foreign national has been employed in a critical or essential capacity at an organization that has a distinguished reputation;
• evidence that the foreign national has commanded or will command a high salary
• letters of recommendation from experts in the field.

The U.S. employer will file a petition with the Citizenship & Immigration Services along with evidence illustrating the foreign national's extraordinary ability. Once the petition is approved, the foreign national may obtain the O visa at the U.S. consulate or embassy in their country of residence. Spouses and unmarried minor children may accompany the O visa holder but are unable to work in the United States. Since the O visa is temporary, it is issued initially for three years and may be extended in one year increments. The O visa allows the individual to apply for permanent residency.

If you meet the extraordinary ability requirements outlined above, please contact us at 214-999-9999.

Foreign Farm Workers May Get Pay Cut

Category: Immigration Laws

As reported in the Houston Chronicle yesterday, a proposed regulation from the Labor Department could have the effect of reducing wages paid to legal immigrant farm workers. Here are excerpts from the story:

The Labor Department planned Wednesday to propose changes to the foreign agriculture worker program, among them how the base wages for H2-A visa holders are determined. Streamlining the hiring process for H2-A visa holders could help turn employers away from hiring illegal workers, officials said.

Right now, the base pay for H2-A agriculture workers is set by the Agriculture Department's Farm Labor Survey and varies by state. Within a state, the pay is the same regardless of what job a worker performs.

However, the Labor Department wants to use the Bureau of Labor Statistics' Occupational Employment Survey, which would allow officials to consider what workers do and their skill levels. It also would allow officials to divide the country into more than 530 areas and to pay wages appropriate to each area.

Under the H-2A program, farmers may apply to bring in foreign workers if they can show the supply of U.S. workers is inadequate. The new regulations, which were to be proposed by the Labor and Homeland Security departments, would be the first changes to the H-2A visa system in 20 years.

More than half of U.S. farm workers admit on Labor Department surveys that they are not legally authorized to work. Some groups believe it's actually about 70 percent.

Employers consider the H2-A program burdensome and many hire undocumented workers rather than use it. Critics say employers don't like the program's wage, housing and other requirements. Labor officials plan to make the application process easier for employers wanting foreign farm workers.

The H-2A system requires that above-average wages -- called the adverse effect wage rate -- be paid to those workers.

In 2007, the highest adverse effect wage rate was $10.32 in Hawaii and the lowest was $8.27 in Arizona. In North Carolina, where the largest number of H-2A visas are issued, the adverse effect wage rate was $9.02.

Go Home To Foreign Country For Two Years Or Apply for A Waiver And Stay In The United States?

Category: Immigration Laws

The Immigration and Nationality Act of 1952, as amended (INA), stipulates that physicians who have entered the United States to undertake a J-1 graduate medical training or education program are uniformly subject to the obligation to return to their home country or country of last residence for a period of two years. INA §212(e). J-1 visa holders are eligible for waiver of the two-year home residence requirement based upon exceptional hardship to a U.S. citizen or permanent resident spouse or child. INA §212(e). There are three other bases for filing a waiver to the two-year foreign residency requirement, but this discussion will be on the exceptional hardship waiver.

In determining a hardship waiver, exceptional hardship must be shown with respect to the U.S. citizen spouse or child in the event they remain in the United States and the foreign spouse returns to the home country. The applicant must also show hardship if the spouse or child accompany the foreign national abroad for two years.

Factors considered to form the basis of exceptional hardship include where the U.S. citizen spouse would be required to interrupt a professional career, suffer unemployment and separation of family.The country conditions to which the exchange visitor and the U.S. citizen or resident spouse would return must also be considered, particularly where they are shown to impact psychological and physical health. Other factors are considered to form the basis of a finding of exceptional hardship as well.

For example, where it is shown that the citizen spouse would suffer adverse consequences to their medical studies by the departure of their J-1 spouse, and that their career would be set back if he or she were either to interrupt their education or attempt to continue their studies in the spouse's country. Similarly, the threat of disruption of the education of an exchange visitor's spouse would constitute sufficient hardship to justify granting the waiver. In evaluating a claim of exceptional hardship, evidence of the disruption of the career or of the education of the U.S. citizen or resident spouse will be considered, along with other relevant factors mentioned above.

To learn more about waivers to the two-year foreign residency requirement, please call us at 214-999-9999.

Tougher Laws In Other States Forcing Immigrants To Texas?

Category: Immigration Laws

The Dallas Morning News reports today that tougher anti-immigrant laws in nearby states are encouraging immigrants (legal and illegal) to move to Texas. Depending on your point of view, this is either bad for Texas taxpayers or good for Texas businesses. We're getting a lot of new labor into the Texas market, but for those who believe immigrants are a drain on state-provided services, it's not a positive development. I'm not one of those people, so I welcome the new residents. Here are excerpts:

Illegal immigrants are coming into Texas, but not from where most people think.

The rush is coming from Oklahoma, Arizona and other states, places that have recently passed tough new anti-illegal immigrant laws.

The Oklahoma statute, which took effect in November, makes it a crime to transport, harbor or hire illegal immigrants. Effective Jan. 1, the Arizona law suspends the business license of employers who knowingly hire illegal immigrants. On a second offense, the license is revoked.

In Tulsa, Okla., the Hispanic Chamber of Commerce has estimated that 15,000 to 25,000 illegal immigrants have left the area. One builder estimated that 30 percent of the Hispanic workforce left Tulsa.

"There's been a tremendous impact in Oklahoma City," said David Castillo, the executive director of the Greater Oklahoma City Hispanic Chamber of Commerce. "We've had several companies close shop and leave the state. Banks have called us and say they're closing 30 accounts per week."

Enrique Hubbard, Mexico's consul general in Dallas, said a dozen Mexican families from Oklahoma have applied for consular documents listing their new homes in the Dallas area. He expects more to arrive because jobs are available in North Texas.

Texas' reputation as a welcoming destination has experts predicting more immigrants will come to Houston and other cities in the state. Texas has not passed any statewide law targeting the employment of undocumented workers.

H-2A Visas - Doing It The Right Way

Category: Immigration Laws

U.S. companies wanting to bring foreign nationals into the United States to perform agricultural labor or services of a temporary or seasonal nature may do so by demonstrating that no U.S. worker is willing, able, qualified, and readily available to perform such service or labor. Under the H-2A program, a U.S. employer must conduct serious recruitment, such as placing a job opening with the State Workforce Agency, and advertising in a newspaper of general circulation in the area of employment. After the recruitment period establishes that there are no U.S. workers capable of performing such agricultural service, and that the employment of the foreign nationals will not adversely affect the wages and working conditions of similarly employed U.S. workers, the employer will file a labor certification with the Department of Labor (DOL).

Once the DOL grants the labor certification, a petition for the foreign national to perform the agricultural labor/services of a temporary or seasonal nature is filed with the U.S. Citizenship and Immigration Services. An approved petition is then forwarded to the U.S. Consulate where the worker applied for the visa.

An H-2A visa is granted for up to a year and may be extended once for two years, for a maximum of three years. If you need more information regarding H-2A visas, please contact us at 214-999-9999.

Adopting A Foreign Orphan

Category: Immigration Laws

U.S. citizens wishing to adopt an orphan from a foreign country may do so after meeting certain requirements. The child must first meet the definition of orphan. A child, who is under the age of 16, is an orphan due to the death or disappearance, abandonment, separation or loss of both parents, or if only one parent, then the one parent is unable to provide the proper care and in writing irrevocably releases the child for adoption. INA Section 101(b)(1)(F).

To begin the process of adopting an orphan, the U.S. citizen parents must first file I-600A, which is the advanced processing application that permits adopting parents to file the orphan application. Essentially, this application will determine whether the prospective adoptive parents will provide a proper home environment, and will determine whether they are suitable as parents. The process consists of home study and fingerprint checks. Home study includes an analysis of the prospective parents' capabilities and living conditions.

Once the advanced processing application is approved, Form I-600 is filed with the Citizenship and Immigration Services (CIS). Form I-600 is the form filed for the classification of an orphan and is accompanied with the approval of the advanced processing application, the orphan's birth certificate, and evidence that the child is an orphan. Once CIS approves the I-600 Application, the application is then forwarded to the U.S. embassy in the country where the child resides. For orphan petitions, the U.S. citizen parents need only establish that the orphan is going to be adopted abroad, or coming to the U.S. for adoption. Once the child has been residing with his or her adoptive parents for two years, the parents may petition their child as an immediate relative so long as the child was adopted before his or her 16th birthday.

To learn more about the orphan petition process, please contact us.

Can't Sign Petition To Remove Conditions Jointly? Then You Need A Waiver

Category: Immigration Laws

Foreign nationals may obtain their green cards by marriage through a U.S. citizen or lawful permanent resident (LPR). If the marriage is less than two years old at the time residence is granted, the foreign national will receive conditional permanent resident status. Conditional residents and their spouses are required to remove those conditions two years after residency is granted by filing a Petition to Remove Conditions on Form I-751.

The most pressing question is whether divorce during the specified period affects the Petition to Remove Conditions. If the marriage falls apart during that two year window, it will be necessary to file for a waiver of the requirement that both spouses sign the petition.

However, the conditional resident requesting a waiver will have to show the marriage was entered into in good faith. In order to show the Immigration Service that the marriage was entered in good faith, the alien should provide documents such as birth certificates of the children, documents showing that the financial assets and liabilities were combined, and documents showing the length of time the parties lived together.

If you have questions regarding how to file a waiver of the requirement to file I-751 jointly, please call us.

K Visas -- Fiance Visas

Category: Immigration Laws

In this Internet era, individuals are now entering Internet chat rooms and meeting other individuals with similar interests. Often, the two individuals reside on different continents. Internet chatting often leads to more serious and frequent communication, and sometimes a relationship flourishes.

When a United States Citizen meets a foreign national, and a relationship develops with the individual, the couple will desire to unite their lives together. If the U.S. Citizen and his or her foreign national fiance want to live their lives together in the United States, the U.S. citizen may petition for the fiance to enter the US with a K-1 visa.

The K-1 visa allows the foreign national fiance to enter the United States solely for the purpose of getting married to the U.S. citizen petitioner. Once the foreign national enters the United States, he or she must get married to the U.S. citizen within 90 days. Of course, the petitioner (US citizen) and beneficiary (fiance) must meet certain requirements before applying for the visa.

The following requirements must be met in order to file a petition for the fiance to enter the U.S. on a K-1 visa: The petitioner must be a U.S. citizen; the U.S. citizen must have met with the fiance in person within the previous two years; both individuals must be legally free to marry; the fiance must not have violated any U.S. immigration laws; the fiance must not have a criminal record.

To learn more about the fiance visas, please contact us at 214-999-9999.

TN Visas - For Mexican And Canadian Professionals

Category: Immigration Laws

Citizens of Mexico or Canada may opt for a TN visa instead of being subject to the annual cap of the H-1B visa. The TN visas are similar to the H-1B visas in that the visa is designed for professionals that have attained the requisite education and experience. Examples include accountants, architects, hotel managers, dentists, librarians, engineers, doctors (who are in teaching and research positions), animal breeders, animal scientists, and management consultants. The pertinent occupations are listed in the regulations, and the North American Free Trade Agreement (NAFTA), whereas the experience and education levels are specified in the regulations. There are a few cases where a degree is not required such as management consultants.

Although a TN visa is valid for one year, it may be renewed every year. It is vital to note that TN visas have a temporary intent requirement and the individual must have intent to return to his/her home country of Mexico or Canada. The process of submitting TN applications are different for Canadians and Mexicans. A Canadian citizen will present all documents and apply for TN status at any port of entry such as the airport. No visa is issued only an I-94 card. On the other hand, a Mexican citizen will apply for TN status at the U.S. Consulate.

If you are a citizen of Mexico or Canada and want more information on the Professional Nonimmigrant visa, please call us at 214-999-9999.

Business Visitors -- The B-1 Visa

Category: Immigration Laws

A foreign national who wishes to enter the United States "on business" must first obtain a B-1 visa from the U.S. Consulate or Embassy in his or her home country. The B-1 visa allows the foreign national to enter the United States temporarily for business. However, the business visitor is not authorized employment in the United States.

For example, if the purpose of the foreign national's planned travel is to meet with business associates, travel for a business convention or conference on specific dates, or settle or negotiate a contract, then a B-1 visa would be necessary. Since the purpose of the trip and visa is temporary in nature, the foreign national needs to establish there is no intention of abandoning his or her home country. Documentation must be presented to the consul establishing intent to return to the home country. An individuals should therefore provide sufficient ties to the home country -- such as an employment letter, financial connections, bank accounts, close family ties, copies of recent tax returns, copies of recent paycheck stubs, copies of mortgage, lease, or other documents demonstrating residence.

Please contact us to learn more about the B-1 visa.

Silence In Wake Of Arizona's Immigration Law

Category: Immigration Laws

Conservative columnist Linda Chavez has an interesting opinion piece in today's Dallas Morning News. She writes about the recently-passed immigration enforcement law in Arizona and reflects that the lack of use of the law indicates that citizens of Arizona understand they are better off with illegal immigrants than without them. Here are excerpts: 

Arizona has been ground zero in the fight against illegal immigration - but a funny thing happened earlier this month when a new anti-illegal-immigrant state law went into effect. Nothing.

The law, one of the toughest in the nation, requires jurisdictions to investigate complaints by ordinary citizens against local businesses that may be employing illegal immigrants. But apparently most Arizonans have better things to worry about.

A new study by the conservative think tank Americas Majority Foundation ( www.amermaj.com) suggests a possible explanation why more Arizonans aren't rushing to run off illegal workers. It turns out that Arizonans may be better off - not worse - because of the presence of so many immigrants in the population.

States with the highest percentage of immigrants or the largest recent influx of immigrants - 19 "high immigrant jurisdictions" in all - are wealthier and have better employment numbers, and most boast better crime figures than those with fewer immigrants.

These statistics don't mean that illegal immigration is not a problem for many jurisdictions. Illegal immigrants do impose costs, including increased health care and education expenses. Ironically, one of the growing costs is for incarcerating illegal immigrants picked up in raids or for offenses that usually don't justify jail time.

These increases are a direct result of efforts to crack down on illegal immigration. And if states like Arizona decide to vigorously enforce their new laws, we can expect to see these costs go up without much, if any, offset in savings to those jurisdictions.

The immigration debate is likely to continue undeterred by the facts the Americas Majority Foundation has pulled together. But the overwhelming majority of Americans - two-thirds to three-fourths, according to most polls - have no wish to see most long-term illegal residents rounded up and sent home.

What they do want is a more concerted effort to secure the borders so the numbers don't keep increasing. Once we get this election year behind us, maybe the sound of silence emanating even from places like Arizona will finally be heard.

Employment-Based Petitions For Outstanding Researchers

Category: Immigration Laws

A U.S employer (typically a university or hospital) that desires to employ a professor or researcher who is "outstanding" in an academic field may file an employment-based petition. To qualify as a "priority worker - outstanding professor or researcher," an individual must meet each of the following evidentiary requirements set out in 8 CFR §204.5(i)(3) and 8 CFR §204.5(g).

A.   Evidence that the individual is recognized internationally
       as outstanding in the academic field;

B.   Evidence that the alien has at least three years of experience in teaching
       and/or research in the academic field;

C.  Provide an offer of employment from a prospective U.S. employer;

D.  Evidence that the U.S. employer is able to pay the proffered wages to the
individual.

Under 8 CFR §204.5(i)(3)(i), evidence that the individual is recognized internationally as outstanding in the academic field shall consist of at least two of the following:

• receipt of major, international prizes, awards, and recognition for the individual's scholarly achievement;
• memberships in associations which require outstanding achievements;
• published material in professional publications written by others about the individual's work in the academic field;
• evidence of participation as the judge of the work of others in the same or an allied academic field;
• evidence of original or scientific or scholarly research contributions to the academic field which have received worldwide recognition in the field ; or
• evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

If a foreign national satisfies these requirements as set forth in the regulations, and upon approval of the petition, the foreign national will be able to adjust their status to a lawful permanent resident.  Please do not hesitate to call us at 214-999-9999 and learn more about the outstanding researcher process.

The U Visa -- For Victims Of Criminal Activity

Category: Immigration Laws

The Victims of Trafficking and Violence Protection Act was passed in 2000 creating the "U" nonimmigrant classification. The U visa is available for undocumented immigrants who have suffered substantial physical or mental abuse as a result of having been a victim of a criminal activity. The individual must demonstrate the following: he or she has information concerning the criminal activity; the law enforcement officials, prosecutors, judges, or other investigating authorities provided a certification indicating that the individual has been helpful, is being helpful or is likely to be helpful; the criminal activity must have violated the laws of the United States, or have occurred in the United States.

The victim of the criminal activity must file Form I-918, Petition for U Nonimmigrant Status, at the Vermont Service Center. To determine what qualifies as a violation of a criminal activity, guidance is provided by statute that the activity is in violation of a Federal, State or local criminal law. Examples include but are not limited to rape, torture, sexual exploitation, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, involuntary servitude, kidnapping, abduction, false imprisonment, murder, blackmail, and obstruction of justice. Along with the petition, the individual must provide evidence that he or she suffered direct and proximate harm as a result of the criminal activity. The evidence may include trial transcripts, court documents, police reports, news articles, affidavits, or orders of protection.

Until the final regulations are issued, individuals who demonstrate eligibility for U visas are granted interim relief. Following the grant of interim relief, the individual may apply for work authorization. After three years of being present in the United States, and for humanitarian grounds, the U visa holder may adjust his or her status.

To learn more about the U visa and its process, please contact us at 214-999-9999.

Religious Workers - R Visa

Category: Immigration Laws

A religious organization in the United States may sponsor an individual from another country who has been a member of a religious denomination for two years immediately preceding the filing of the application. If the appropriate Petition and supporting documentation are submitted, the individual may qualify for a nonimmigrant R visa. If the individual is the United States, the religious organization must file Form I-129 Petition for a Nonimmigrant Worker, along with the R Classification Supplement in the United States. If the individual's spouse and children are accompanying or following to join him or her, then Form I-539 should be filed with the I-129 Petition.

The petition must be supported with documentation establishing that the individual seeks to enter the United States solely for the purpose to:
1) carry on the vocation of a minister of that religious organization; or
2) work in a professional capacity for that religious organization at the request of the organization; or
3) work at the request of the organization in a religious vocation or occupation for the organization (or its § 501(c)(3) affiliate).

The petitioner (religious organization) must show that it is a bona fide, non-profit, tax exempt religious organization under § 501(c)(3) of the Internal Revenue Code. This can be shown by submitting copies of the organization's articles of incorporation, bylaws, financial statements, and letters from the Internal Revenue Service showing that the religious organization is nonprofit and exempt from taxation.

Furthermore, a letter from an authorized official should indicate that the individual has been a member of the religious organization and that the foreign and U.S religious organizations belong to the same religious denomination. The religious organization should provide a sworn statement by an authorized official outlining the hours the individual will work, the duties and responsibilities the individual will perform and the remuneration the individual will receive. Once the R-1 visa is approved, the religious worker, spouse, and children (under 21 years) are granted admission for three years which may be extended for an additional two years.

The R visa allows the individual to apply for permanent residency. If an individual has been in R status for at least two years, a Special Immigrant Petition I-360 may be filed by either the Religious worker or the employer. The Special Immigrant Petition is a step towards obtaining permanent residency. Please contact us if you have any questions regarding Religious Worker visas.

Attention Frequent-Flyer Residents!

Category: Immigration Laws

Generally, a lawful permanent resident (LPR) must have continuous residence in the United States for five years (or 3 years if married to a U.S. citizen) in order to be eligible for citizenship. Continuous residence in the United States does not mean that an LPR cannot leave the country for the entire five years (or three years if married to a USC) in order to qualify for citizenship. On the contrary, LPR's can travel freely without the hassle of obtaining a visa from the United States Citizenship and Immigration Service. However, LPR's must make sure they do not face the problem of abandoning the continuous physical presence requirement.

An LPR may be deemed to have disrupted the "continuous residence" requirement if the LPR travels out of the United States a few times a year, or if an LPR is outside of the country for over six months. If an LPR continuously maintains a residence in the United States but is physically outside of the United States for over a year, the Department of Homeland Security (DHS) may decide that the continuous residence has been abandoned. If an LPR has not properly maintained the continuous physical residence requirement, and the DHS determines that an LPR has abandoned his or her residency, DHS can refuse an LPR back into the United States.

Attention all frequent-flyer residents: Make sure your trips abroad are for short periods of time. Please note that the continuous physical residence requirement is one requirement that must be satisfied to qualify for citizenship. There are other requirements that must be met in order to establish citizenship eligibility. Please contact us if you would like to begin your citizenship process.

Don't Forget To Remove Your Conditions!

Category: Immigration Laws

If a foreign national is married less than two years to a U.S. Citizen, the alien spouse may be granted conditional permanent resident status in the United States from the time residency is granted. Is there a difference between permanent residence and conditional permanent residence? No. Conditional permanent residents have the same rights, privileges and obligations as permanent residents. The only difference is that conditional permanent residents must file a petition to remove their conditions a year and nine months from the time their residencies are granted.

Alien spouses currently in conditional resident status must not forget to remove their conditions on Form I-751 Petition to Remove Conditions. Such petition should be accompanied with evidence that the alien spouse and U.S. Citizen spouse continue to reside together and have a valid marriage. Supporting documents include utility bills bearing both names, apartment leases showing joint tenancy, joint accounts, and birth certificates of children. The petition to remove the conditions must be filed one year and nine months from the date the alien spouse was granted conditional permanent resident status. Failure to file the petition removing the conditions may result in the termination of the alien spouse's permanent resident status and removal proceedings may be initiated.

If the spouses are divorced before the second anniversary of the date the alien spouse was granted conditional permanent resident status, and the parties cannot file Form I-751 jointly, waivers are available. The alien spouse may be granted the waiver by showing proof that the marriage was entered in good faith, and it would result in extreme hardship if the alien were deported. So if an alien spouse has been granted conditional permanent residence, don't forget to remove your conditions!

"Breaking Point" Reached In Farmworker immigration Problem?

Category: Immigration News

The blog of the New York Times has an interesting post today about the "breaking point" being reached in the farmworker immigration situation. The bottom line is that farmers are not finding enough workers, due to immigration crackdowns. And while there are still unemployed American citizens, very few of them have any experience in farm work (or are interested in learning).

There may be a farmworker provision attached to another bill and presented to Congress before the end of the year, but that is very tenuous at this point.

U.S. Sailor May Have To Leave Service If Wife Is Deported

Category: Immigration Laws

CNN has an interesting article online about a sailor in the U.S. Navy who may have to quit the service because his wife is being threatened with deportation. Here are excerpts:

Eduardo Gonzalez, a petty officer second class with the U.S. Navy, is about to be deployed overseas for a third time. Making his deployment even tougher is the fact his wife may not be around when he comes back.

His wife faces deportation to Guatemala -- her home country that she hasn't seen since 1989. He also doesn't know what would happen to his young son, Eduardo Jr., if that happens.

"I like being in uniform and serving my country, but if she goes back I'm going to have to give it all up and just get out and take care of my son and get a job," he said.

"Defending the country that's trying to kick my family out is a thought that always runs through my mind."

The U.S. military does not have a policy to deal with such cases. Each is handled case-by-case, not by the military, but by immigration authorities. The government doesn't have numbers on how many military members are in predicaments similar to Gonzalez's.

Immigration officials also said marrying a U.S. citizen does not mean the spouse is automatically entitled to U.S. citizenship or permanent legal status.

Article Correction
An earlier version of this story incorrectly stated Eduardo Gonzalez's immigration status when he entered the United States as a boy. He and his family entered the country legally. Lt. Col. Margaret Stock, a member of the U.S. Army Reserves who teaches immigration law at the U.S. Military Academy at West Point, New York, said she believes there should be an overall policy dealing with the potential deportation of family members of active duty military members.

"You got to understand. When you're in a combat zone, you need to be focusing all of your energies on fighting the enemy. You can't be worried that your loved ones back home could be shipped off to a foreign country where you're never going to see them again," she said.

Stock also said the government is conflicted about how to treat such cases. On the one hand, the government is supposed to be providing military families with assistance, housing and other forms of benefits while their spouses are overseas. On the other hand, the same government is trying to deport the very same people.

"What's happening right now is, because of the dysfunction and complexity of our immigration laws, we've got people fighting overseas who are facing the impossible situation of having family members facing deportation back home," she said.

In Gonzalez's case, his wife, Mildred, came to the United States with her mother in 1989 when she was 5 years old. They were granted political asylum because of their status as war refugees from Guatemala.

In September 2000, Mildred's mother applied for legalization and included her daughter in that application. Her mother was granted legal status in July 2004, according to Gonzalez.

However, six weeks earlier, Gonzalez and Mildred got married, canceling Mildred's ability to apply for legal status through her mother because she was no longer an unmarried daughter under the age of 21. As a result, her legal status still remains in jeopardy.

A judge in June granted her a one-year extension to remain in the United States. If her legal status does not change by June 8, 2008, she will have 60 days to voluntarily leave the country or face deportation.

That's just fine, according to Mark Krikorian, the executive director of the Center for Immigration Studies, which lobbies for tougher laws on illegal immigration.

"What you're talking about is amnesty for illegal immigrants who have a relative in the armed forces, and that's just outrageous," he said. "What we're talking about here is letting lawbreakers get away with their actions just because they have a relative in the military. ... There's no justification for that kind of policy."

Gonzalez said that type of response is unjustified. "I'm trying to make his country better -- my country better -- and it should be her country too."

"I understand the laws have to be followed and guidelines and a system must be maintained, but on the other token, there are times when the situation is just out of their reach," Gonzalez said.

His wife, Mildred, added, "We didn't come here to break the law. We just want to feel safe and have a home just like everybody else."

U.S. Army Sgt. Emmanuel Woko, a member of the Army's 2nd Brigade, 1st Infantry Division who faces his third tour in Iraq, understands just how Gonzalez and his family feel. His wife and children could be sent back to Nigeria.

"My heart is bleeding on the thought that my wife could be deported back to Nigeria while I am deployed in Iraq," he said. "I am extremely distressed and distracted by the thought."

That's a sentiment echoed by Gonzalez: "We are not asking for anything. We are just asking for our families to stay with us."

Inter-Country Adoptions

Category: Immigration Laws

More and more frequently these days, we read of U.S. citizens adopting children from foreign countries. There was a story on CNN this morning about Guatemalan adoptions. Here is information from the USCIS Web site about inter-country adoptions:

Adopting children from all over the world has steadily increased in the past decade. Over 20,000 inter-country adoptions are taking place per year in addition to the more than 200,000 foreign-adopted children already living in the U.S. The Department of Homeland Security - U.S. Citizenship and Immigration Services (USCIS) is proud to play a key role in the inter-country adoption process.

Prospective adoptive parents are encouraged to familiarize themselves with inter-country adoption processes before they begin filing applications for a particular child. A good place to start is with the booklet, The Immigration of Adopted and Prospective Adopted Children.

Prospective adoptive parents may find the services of an adoption agency helpful for guidance and assistance with the immigration of orphans and adopted children. While USCIS cannot recommend specific agencies, we strongly advise prospective adoptive parents to seek out a reputable agency with established foreign adoption experience and/or competent legal representation in their efforts to bring foreign-born orphans into the United States. One place to start looking for an agency is through the adoption advocacy community.

There are two legal ways to bring an adopted child into the country. Please review the differences, as they are important to your successful adoption.

• Immigration/Adoption of child based on 2-years residence through submitting Form I-130: If you adopt a child before the child turns 16 (or 18, as described below), and you live with the child for two years as the child's primary caregiver, then you may file an I-130 petition for an alien relative. The petition may be filed after the 16th (or 18th if a sibling) birthday, and the two years may culminate after the 16th (or 18th) birthday. (Please note that, generally, all qualifying criteria must be established BEFORE the child may enter the U.S.)
• Immigration/Adoption of an orphan through submitting Form I-600: If you adopt or intend to adopt a child who meets the legal definition of an orphan, you may petition for that child at any time prior to the child's 16th (or 18th, as described below) birthday, even if the adoption takes place subsequently (and in certain cases, the adoption does not occur until the child comes to the U.S.).

If you are interested in adopting a child from a particular country, we suggest that you consult the Department of State Website web pages addressing Country-Specific Adoption and Important Notices.

These materials alert prospective adoptive parents to conditions that may develop or already exist in foreign adoption cases. International adoption is essentially a private legal matter between a private individual (or couple) who wishes to adopt, and a foreign court, which operates under that country's laws and regulations. U.S. authorities cannot intervene on behalf of prospective parents with the courts in the country where the adoption takes place. The adoption of a foreign-born orphan does not automatically guarantee the child's eligibility to immigrate to the United States. Also, the adoptive parent needs to be aware of U.S. immigration law and legal regulatory procedures. An orphan cannot legally immigrate to the United States without USCIS processing.

Adopting Older Children - "Aging Out" of Eligibility to Immigrate Through Adoption.

If you are considering adopting an older child, you should be aware of the age limits on eligibility for adoptions and immigration, regardless of whether or not your state laws permit the adoption of older children (or even adults).

U.S. law allows the adoption and immigration of children who are under 16 years of age, with two exceptions:

• Biological siblings of a child adopted by the same parents may be adopted if under 18 years of age; and
• Orphans over the age of 16 may be adopted, as long as the I-600 petition was filed on their behalf before their 16th birthday (or in the case of an orphan who is the sibling of a child adopted by the same parents, before their 18th birthday).

Columnist: Economy Hurt By Lack Of Immigrant Workers

Category: Immigration Laws

A columnist for the newspaper where I worked my way through college and law school has an interesting article today about the most recent immigration changes -- the "no match" letters.

Rowland Nethaway says this continuing crackdown on illegal workers is going to damage the nation's economy. Here are excerpts from his column:

WACO, Texas -- If authorities continue to crack down on illegal workers, the full Congress will learn the need for comprehensive immigration reform.

The raids and arrests that have occurred so far have already had an economic impact on the nation's agriculture industry.

Other segments of the economy can expect a sharp downturn as employers lose access to a valuable illegal immigrant workforce.

Unless Congress acts quickly to overhaul the nation's dysfunctional immigration system, Americans can expect to experience a significant jump in prices at the grocery store.

The hit on American pocketbooks will not be limited to price hikes and shortages at the supermarket. Across the economy, many services will decline while direct costs will rise.

Evidently, not enough members of Congress play chess. Even beginning chess players know they must think several moves ahead to have any chance at winning.

Congress' enforcement-only camp succeeded in shooting down a comprehensive immigration reform bill supported by President Bush and a bipartisan assemblage of Democrats and Republicans.

The legislation would have provided a method to legally match foreign workers with American employers.

In another example of being careful about what you ask for, immigration authorities have stepped up enforcement of long-ignored laws that make it illegal for U.S. employers to hire illegal immigrant workers.

Additionally, Homeland Security Secretary Michael Chertoff announced a new policy that requires employers to follow up on "no-match" letters from the Social Security Administration.

These letters will inform employers when the nine-digit sequence of numbers provided by their workers does not to match the Social Security database.

For years now, employers have known that nothing would happen to them when they wadded up and tossed these no-match letters into the nearest trash can.

Now, employers have been told that if they do not clear up mismatched Social Security numbers, then the identified workers must be fired or the employers will face fines up to $10,000, as well as possible criminal charges.

It's been unlawful to hire illegal workers for decades. About the only time the immigration law has made news has been when a presidential nominee was discovered to have hired an illegal nanny.

Breaking the immigration law has been enough to disqualify a nominee from a plum government appointment, but not enough to motivate immigration authorities to enforce the law on employers across the nation.

Full enforcement of the new no-match requirement will only disrupt a fraction of illegal workers who can buy, borrow or steal valid Social Security numbers.

Also, the letters will only be sent to employers with at least 10 workers with mismatched Social Security numbers, and where those workers make up at least 0.5 percent of their workforce.

An estimated 75 percent of day laborers are illegal and undocumented. As a rule, no documents are requested and none are given. Many of these workers endure wage theft from unscrupulous employers.

Still, the recent baby steps that have been taken to enforce long-standing immigration laws have caused serious disruptions in the operations of many American businesses as word of the crackdowns has spread.

Early reports indicate that many farmers will produce only 50 percent of their normal crops due to the growing labor shortage.

In some cases, farmers have chosen to not plant due to the difficulty in finding workers to harvest the crops.

It is estimated that at least two-thirds of the workers in construction and agriculture are working illegally.

The enforcement-only critics who killed comprehensive immigration reform should have easily predicted this outcome. But they didn't.

Rowland Nethaway writes for the Waco Tribune-Herald.

The Difference Between a Visa and Status

Category: Immigration Laws

Over the last several years many foreign nationals who are in the United States legally have often used the words "visa" and "status" interchangeably. In too many cases this has led to disastrous results for those people.

Anyone who wants to enter the United States will have to go through an inspection by an immigration officer at the border prior to entry. The officer will normally issue an I-94 card that allows the foreign national to enter the U.S. for a specific purpose and for a specific duration of time. The above falls into the concept of "status." For example, a British citizen who flies to the U.S. for a vacation will go through an inspection at the airport and an I-94 card will be placed in his passport. The I-94 card is usually valid for six months and allows the British citizen to hold the status of a tourist for six months while in the United States.

A person admitted in one status may seek a change of status into a new classification (such as from F-1 to H-1B). Also, the duration of a person's stay may be extended by Immigration Services.

A "visa" on the other hand, is a document that allows a person to come to a port of entry and apply for admission into the United States. A visa allows for a person to apply to enter the U.S.; it does not provide a person with "status." A person applies for a visa at a U.S. consulate in his or her home country. However, issuance of a visa does not guarantee a person's admission into the United States.

If a citizen of India wishes to visit family members in the U.S. she will apply for a tourist visa at a U.S. Consulate in India. If the application is approved, the U.S. Consulate will usually issue a tourist visa that is valid for ten years. Therefore, the Indian citizen now possesses a visa. However, at the port of entry she will go through inspection and will be issued an I-94 card that is usually valid for six months. This means that although this person has a valid ten-year tourist visa, she is only authorized to have status as a tourist for six months.

As shown above, a visa is only for the purpose of admission into the United States, not for the purpose of remaining in the United States. To remain in the United States, a person must have status, which is evidenced by the validity dates of the I-94 card. If a person remains in the U.S. past the expiration date of the I-94 card they no longer have legal status in the U.S. even if their visa has not yet expired.

Finally, a non-immigrant visa holder violates his or her status in the United States if the person:

remains beyond the expiration date of the status granted;

engages in employment without specific authorization; or

engages in an activity that is not consistent with the status in which the person was admitted.

A person in this situation must immediately attempt to regain status to avoid removal from the U.S. and to prevent other serious immigration consequences.

Extreme Delays In Citizenship Cases

Category: Immigration Laws

Every year, thousands of lawful permanent residents, or green card holders, in the United States apply for citizenship. The vast majority of cases are completed within one year. Each citizenship applicant, however, must undergo certain security clearances (fingerprints and name checks) before the applicant can obtain U.S. citizenship. The purpose of this clearance procedure is to demonstrate that the applicant does not have any criminal issue that would render the person ineligible for U.S. citizenship.

According to an April 25, 2006, USCIS memo, approximately 99% of all background and name checks are resolved within two months. The remaining 1% may take several months, or even years, before the background and name checks are completed.

There are remedies available to permanent residents who have been waiting months or years for the results of their background checks. Section 336(b) of the Immigration and Nationality Act permits naturalization applicants to file a writ of mandamus in federal court to force a decision on a naturalization case if 120 days or more have elapsed following the naturalization interview and there is still no decision on a case.

For several years, filing a writ of mandamus was a good option to those experiencing delays in their naturalization case. However, the use of the mandamus is now limited in practice. The April 25, 2006, memo also states that USCIS will not schedule an interview until background checks are completed. The writ of mandamus can only be filed if a decision has not been reached in a case within 120 days of the citizenship interview. Obviously, USCIS is trying to eliminate the one tool used by naturalization applicants who are stuck in the background check process by changing when the naturalization interview occurs.

Regardless of when your interview takes place, there are still several things that can be done to speed up a case that has stalled. Our office can file a writ of mandamus on your behalf if you have already attended a citizenship interview. If you have been waiting several months for an interview, you can contact your congressman to see if he or she will assist you. Our office can also conduct inquiries directly with USCIS, and we can contact immigration liaisons who work directly with immigration officials, to find out the reason for delay on a particular case.

If you are experiencing delays in your case, please contact us today. We can help you get the results you are looking for.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and Immigration Law Answers Blog.

H-2B Visas: The Other H Cap

Category: Immigration Laws

Many individuals and employers in the United States are unaware of the existence of the H-2B visa. Although it is not as common as the H-1B visa, it is still an attractive option to individuals wanting to live and work in the U.S.

The H-2B visa is similar to the H-1B visa since the H-2B nonimmigrant work visa also provides a method for U.S. employers to obtain the services of foreign nationals to fill temporary needs of the business or corporation. The H-2B visa, however, has many stringent requirements that must be met prior to filing, which is the main reason for its underuse.

One of the most significant restrictions on the H-2B category is the requirement that the need for the foreign worker be temporary. There are four situations in which there is a temporary need for workers: recurring seasonal need, intermittent need, peak-load need, and need based on a one-time occurrence. It is this requirement that makes this visa category so rarely used. Not only must the employer promise to employ the worker for a limited period of time, the employer must attest that its need for the worker is temporary.

Another cumbersome requirement of the H-2B visa is the requirement that a labor certification be approved prior to filing the visa petition. The Department of Labor must determine that there are no unemployed, qualified U.S. workers available for the position in the area of the proposed employment, and that employment of the foreign national will not adversely affect the wages or working conditions of U.S. workers. The employer must also conduct a recruitment campaign to prove that there are no qualified willing and able U.S. workers for the position.

Although the process to obtain an H-2B visa can be lengthy, there are many benefits in having an H-2B visa. A person can enter the U.S. for temporary work and enjoy all employee benefits. H-2B visa holders can bring dependents to the U.S., travel freely in and out of the U.S., and a new petition can be approved if there is a need to change jobs.

The H-2B work visa was created to allow people to come to the United States temporarily, mainly for non-agricultural jobs, for which the U.S. workers are in short supply. Up to 66,000 H-2B visas are issued every year. Although the quota has been reached for the 2007 year, it is never too early to begin thinking of applying for this visa next year, which actually begins on October 1, 2007. If you are interested in obtaining more information on this visa, please contact us.

Frequently Asked Questions About Becoming A United States Citizen

Category: Immigration Laws

1. What are the basic requirements that I must meet before I can apply to become a U.S. citizen?

In order to apply for citizenship (often called naturalization) you must meet all of the following requirements:

Be a lawful permanent resident of the United States (green card holder);

Be 18 years of age or older;

Have been a permanent resident for at least five years (only three years if married to a U.S. citizen);

Be a person of good moral character;

Have been physically present in the U.S. for at least half of the five years;

Not have been absent from the U.S. for more than one year. Absences of more than six months, however, create a presumption that you have abandoned your permanent residency; and

Have a basic understanding of written and spoken English and U.S. history.

2. Am I eligible to obtain dual citizenship?

Maybe. The United States allows citizens of other countries to hold dual citizenship. You also need to check the laws of your home country to make sure that it allows dual citizenship as well.

3. How long does it take to become a U.S. Citizen?

It depends. Current processing times are between 9 and 12 months for a final decision to be made and for an oath ceremony to be scheduled. Each applicant, however, must go though fingerprinting and background checks. These background checks my take several months, or even years, to complete.

4. Can I live overseas after I become a citizen?

Yes. The United States does not place any restrictions on U.S. citizens wanting to live abroad, and you do not run the risk of losing your citizenship.

5. What are the filing fees associated with an application for citizenship?

The current filing fees are $330 for the citizenship application and $70 for fingerprints. Immigration Services has issued a new fee schedule that goes into effect on July 30, 2007. On that date, the total for fingerprints and filing fees will be $675.

6. What should I do if I cannot attend my oath ceremony?

If you are unable to attend the oath ceremony, you should return the "Notice of Naturalization Oath Ceremony" that the U.S. Citizenship and Immigration Services (USCIS) sent you, along with a letter explaining why you cannot attend the ceremony. Your local office will reschedule and send you a new "Notice of Naturalization Oath Ceremony" to advise you of your new ceremony date.

7. Does my child automatically become a U.S. citizen after I am naturalized?

In most cases, your natural or adopted child is a citizen if the following are true:

The other parent is also naturalized, or you are the only surviving parent (if the other parent is deceased), or you have legal custody (if you and the other parent are legally separated or divorced).

The child was under 18 when the parent(s) naturalized.

The child was not married when the parent(s) naturalized and the child was a permanent resident before his or her 18th birthday.

8. What are some of the benefits of becoming a citizen?

A: Naturalized American citizens have many rights, including the right to vote, to hold public office (except that of the Vice-President or President), to extend U.S. citizenship to their children, and to obtain visas for immediate relatives.

9. If I don't speak English fluently can I take the exam in another language.

It depends. The English language requirement is only waived for persons meeting the following criteria: If you are over the age of 50 and have been a permanent resident for 20 years or more, or if you are over the age of 55 and have been a permanent resident for 15 years or more.

10. What can I expect from the history exam?

The U.S. government wants you to be knowledgeable about U.S. history and government structure. The questions range from U.S. history to naming current government officials. While there are 100 possible questions that may be asked, you will likely be asked only 10 or so. The test may be given orally or in writing.

Schedule A -- Permanent Residency For Nurses And Physical Therapists

Category: Immigration Laws

Many overseas professionals wish to immigrate to the United States for employment. Normally, to file an employment-based immigration petition, a Labor Certification approval is a pre-requisite. Schedule A, however, is a list of occupations for which the U.S. Department of Labor (DOL) has determined that there is an insufficient number of U.S. workers who are qualified, willing, and able. Professional nurses and physical therapists are the only two occupations explicitly listed on Schedule A. Additionally, the DOL has authorized U.S. Citizenship and Immigration Services (USCIS) to allow a foreign worker to obtain a green card without first having to go through the entire labor certification process.

Professional Nurses

To qualify for Schedule A processing, a professional nurse must be in possession of the following:

A diploma from a nursing school in the home country;

A license to practice nursing in the home country;

The nurse must have one of the following:

A passing test score on the Commission on Graduate in Foreign Nursing Schools (CGFNS) examination; or

A full and unrestricted license to practice professional nursing in the state of intended employment;

A Visa Screen Certificate.

In addition, unless the nurse was educated in an English-speaking country, he or she must achieve a certain score on tests in written and spoken English administered by TOEFL or IELTS in order to qualify for the Visa Screen Certificate. The program is also composed of an educational analysis and licensure validation.

Currently, there is such a shortage of nurses working in the United States, persons abroad will find it relatively easy to obtain offers of employment from hospital in the U.S.

Physical Therapists

A physical therapist is defined as a person who applies the art and the science of physical therapy to the treatment of patients with disabilities, disorders, and injuries to relive pain, develop and restore function, and maintain performance.

To qualify for Schedule A processing, a physical therapist must possess all the qualifications necessary to take the physical therapist licensing examination in the state in which he or she intends to practice physical therapy. To do this a physical therapist must submit a letter from the state of intended employment's licensing official stating that the applicant is eligible to take the state's written licensing examination for physical therapists. He or she must also possess a four year degree in physical therapy.

Conclusion

Because the Schedule A designation does not require the approval of a Labor Certification by the DOL, the process for obtaining a green card for a qualified nurse or physical therapist is much shorter than for other occupations that do require an approved labor certification.

While other employers have to test the labor market and show that there are no able, willing, and qualified U.S. workers to perform the job for which the foreign national is seeking permanent residence, the physical therapist's and nurse's employer do not have to test the labor market because the Department of Labor has already recognized the unavailability of workers for these positions.

Kraft & Associates can assist you or your employer in preparing and filing the physical therapist or nurse immigration applications. We will work closely with hospitals and other organizations throughout the process, and assist the employer step-by-step during the preparation of the applications. Whether you are a person who has received an employment offer and is contemplating filing a petition, or are a human resource professional of the employer, please give us a call or send us an e-mail. We can provide you the guidance you need through the entire procedure, and help to obtain a successful result for you.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and Immigration Law Answers Blog.

The Little Known H-1C Visa For Nurses

Category: Immigration Laws

The United States currently has a severe shortage of licensed nurses, and this is expected to intensify as baby boomers age and the need for health care grows. To address this concern, the U.S. implemented a visa category allowing nurses to obtain permanent residency. The problem with this, however, is that nurses who are eligible to obtain their green card must wait several years before their visas become available. The H-1C visa is an option for nurses who want to work in the U.S. prior to their permanent residency approval.

In 1999, the U.S. Congress passed the Nursing Relief for Disadvantaged Areas Act. This law created the H-1C visa category that allowed foreign registered nurses to work in the United States for up to three years in certain health professional shortage areas. The law allows for up to 500 nurses per year, with each state limited to only 25 H-1C nurses. This category is open to general RN positions.

The H-1C visa program expired on June 13, 2005. However, effective December 20, 2006, it has been "reauthorized" (meaning it is open again) for another three years until December 20, 2009.

To qualify for H1C status, the beneficiary must:

• Have an unrestricted nurse's license in his/her home country, or have received nursing education in the United States;

• Have passed the CGFNS or have a full and unrestricted license to practice as a registered nurse in the state of intended employment; and

• Be fully qualified and eligible under all state laws and regulations to practice as a registered nurse in the state of intended employment immediately upon admission to the United States.

The H-1C visa allows registered nurses to work in the United States on a temporary basis. This visa also allows nurses to work in the U.S. while their immigrant visa applications are pending with Immigration Services.

The H-1C visa category is based on the former H-1A visa category for nurses, which expired on September 30, 1997. The H-1C classification is more restrictive, due to its numerical cap on the number of visas issued annually and its application only to underserved areas.

If you have questions about the H-1C visa or any other immigration matter, please contact our office.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and Immigration Law Answers Blog.

Employment Authorization Document -- What Is It?

Category: Immigration Laws

What is an Employment Authorization Document?
Employment Authorization Document (EAD) is a document that authorizes an foreign national to work in the U.S. for a period of time, usually one year. It is also called a work permit.

How do I apply for Employment Authorization?
You must file a Form I-765 (Application for Employment Authorization) by mail with the USCIS Service Center or District Office that serves the area where you live. You must also submit other supporting documents, photos, and fee.

Do I need an EAD Card?
Maybe. Some types of visas allow a person to work in the U.S. without first obtaining an employment authorization card. If you are in the U.S. on an H-1B visa, for example, you do not need to obtain an EAD card since you are in the U.S. on a work visa.

How long should I wait for the EAD?
It usually takes three to six months to process the EAD application. Processing times, however, are always changing, so it may take more or less depending on how backlogged Immigration Services is.

What should I do if my EAD application is denied?
If your application for an EAD is denied, you will receive a letter that will tell you why the application was denied. You will not be allowed to appeal a negative decision, but you may submit a motion to reopen or a motion to reconsider with the office that denied your application. If that is denied, you will either have to reapply or forego employment authorization in the United States.

What should I do if my EAD card gets lost or stolen?
You may apply for a replacement EAD card. Contact USCIS Customer Service at 1-800-375-5283 and an Immigration Services Customer Representative will be able to help you.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and Immigration Law Answers Blog.

Medicaid Law Aimed At Illegal Immigrants Hits U.S. Citizens

Category: Immigration Laws

According to a story in the New York Times today, "A new federal rule intended to keep illegal immigrants from receiving Medicaid has instead shut out tens of thousands of United States citizens who have had difficulty complying with requirements to show birth certificates and other documents proving their citizenship, state officials say." Other excerpts from the story:

Under a 2006 federal law, the Deficit Reduction Act, most people who say they are United States citizens and want Medicaid must provide "satisfactory documentary evidence of citizenship," which could include a passport or the combination of a birth certificate and a driver's license.

Some state officials say the Bush administration went beyond the law in some ways, for example, by requiring people to submit original documents or copies certified by the issuing agency.

The numbers alone do not prove that the decline in enrollment was caused by the new federal policy. But state officials see a cause-and-effect relationship. They say the decline began soon after they started enforcing the new rule. Moreover, they say, they have not seen a decline in enrollment among people who are exempt from the documentation requirement -- for example, people who have qualified for Medicare and are also eligible for Medicaid.

Medicaid officials across the country report that some pregnant women are going without prenatal care and some parents are postponing checkups for their children while they hunt down birth certificates and other documents.

The principal authors of the 2006 law were Representatives Charlie Norwood and Nathan Deal, both Georgia Republicans. Mr. Norwood died last month.

Chris Riley, the chief of staff for Mr. Deal, said the new requirement did encounter "some bumps in the road" last year. But, he said, Mr. Deal believes that the requirement "has saved taxpayers money." The congressman "will vigorously fight repeal of that provision" and will, in fact, try to extend it to the Children's Health Insurance Program, Mr. Riley said. He added that the rule could be applied flexibly so it did not cause hardship for citizens.

In general, Medicaid is available only to United States citizens and certain "qualified aliens." Until 2006, states had some discretion in deciding how to verify citizenship. Applicants had to declare in writing, under penalty of perjury, whether they were citizens. Most states required documents, like birth certificates, only if other evidence suggested that a person was falsely claiming to be a United States citizen.

In Virginia, health insurance for children has been a top priority for state officials, and the number of children on Medicaid increased steadily for several years. But since July, the number has declined by 13,300, to 373,800, according to Cindi B. Jones, chief deputy director of the Virginia Medicaid program.

"The federal rule closed the door on our ability to enroll people over the telephone and the Internet, wiping out a full year of progress in covering kids," Ms. Jones said.

State and local agencies have adopted new procedures to handle and copy valuable documents. J. Ruth Kennedy, deputy director of the Medicaid program in Louisiana, said her agency had received hundreds of original driver's licenses and passports in the mail.

Barry E. Nangle, the state registrar of vital statistics in Utah, said, "The new federal requirement has created a big demand for birth certificates by a group of people who are not exactly well placed to pay our fees." States typically charge $10 to $30 for a certificate.

Foreign Nationals In The Armed Services

Category: Immigration Laws

In July 2002, President George W. Bush signed an executive order specifying that foreign nationals who serve in the United States armed forces during a period of hostility would be eligible for expedited U.S. citizenship. The period of hostility began on September 11, 2001, and ends on a date that has yet to be specified by the President.

According to the White House, this executive order has allowed non-citizens to immediately become U.S. citizens. So far, more than 13,000 foreign-born members of the armed forces have applied for U.S. citizenship since the order took effect.

For those foreign nationals who are stationed overseas, the Immigration Services now allows naturalization ceremonies to be held at U.S. military bases, embassies, and consulates around the world. This makes it easier for the foreign-born military personnel to obtain their citizenship quickly.

Under current immigration laws, non-citizens must serve in the U.S. military for at least one year before they are eligible to apply for citizenship. This new executive order, however, will remove the three year service requirement. Additionally, the filing fees associated with an application for naturalization will be waived for those meeting the above-mentioned requirements.

A survey released in May 2006 indicated that there are more than 68,000 foreign-born serving in the armed forces, and this represents approximately 5% of the total on active duty.

Troops At Border Become Citizens

Category: Immigration Laws

As reported today by the Associated Press, six National Guard troops serving at the Mexican border became U.S. citizens Friday. The six members of the Texas National Guard were deployed to aid the U.S. Border Patrol after President Bush called for 6,000 troops on the southwest border in May, and are believed to be the first to become eligible for expedited citizenship because of their work helping to guard the U.S.-Mexico border.

Nearly 25,000 military service members on active duty since Sept. 11, 2001, have taken advantage of an executive order signed in 2002 allowing active military personnel deployed for anti-terrorism duties to immediately apply for citizenship, skipping the previous one-year service period. Typically, noncitizens must wait three to five years before applying for citizenship.

Obtaining Permission For Travel Outside The United States

Category: Immigration Laws

If people want to travel outside of the United States, and they are not U.S. citizens, they must make sure that they have all the appropriate documentation to show that they are eligible for re-entry into the United States. For certain aliens who wish to re-enter the U.S. after they travel abroad, they must first apply for travel documents with USCIS. There are two types of travel documents:

1. Advanced Parole:

Advanced Parole is a document which allows a person who has his or her application for adjustment of status pending with Immigration Services to travel outside the United States. This document preserves the pending application while the person travels abroad, and it allows the person to re-enter the U.S. without a valid visa. If a person with a pending application for permanent residency travels abroad without first obtaining advanced parole, his or her application is considered abandoned.

2. Re-Entry Permit

A re-entry permit is a travel document that is only available to permanent residents or conditional permanent residents of the U.S. who wish to remain outside the U.S. for a time period of more than six months at one time. This document allows a permanent resident to travel abroad and then re-enter the country without running the risk that re-entry will be denied for having abandoned his or her residency status.

Visas to Enter the United States

A citizen of a foreign country who wishes to enter the U.S. must do so with a valid visa. A visa will be issued by the United States to a particular person giving that person permission to enter the U.S. for a given period of time and for certain purposes. Visas are usually granted either upon arrival in the U.S. or by first applying for a visa at a U.S. Consulate in the individual's home country.

The United States As A Safe Haven For Refugees

Category: Immigration Laws

Every year thousands of foreign nationals enter the United States fleeing persecution they are facing in their home countries. For those who meet the legal criteria, the U.S. offers a form of protection -- asylum. Those who are eligible for asylum are allowed to remain in the United States, and eventually are eligible to apply for permanent residency.

An applicant must be a refugee in order to be eligible for asylum. The definition of a refugee requires that the applicant be:

unable or unwilling to return to or avail himself or herself of the protection of the country of his or her nationality or, if stateless, the country where he or she last habitually resided

because of persecution or a well-founded fear of persecution

on account of race, religion, nationality, membership in a particular social group, or political opinion.

Any person who is in the United States may apply for asylum. This holds true even if that person is here without any valid immigration status. There are two ways in which a person may apply for asylum -- by either affirmative filing or applying for asylum during removal proceedings.

Affirmative filing involves a person preparing an application for asylum and submitting this to Immigration Services. Applicants will then be scheduled to be interviewed by an asylum officer. The purpose of this interview is to determine if the applicant meets the definition of a refugee and to ensure that the applicant does not face any bars to asylum. A person will usually not receive a decision at the interview but should receive a decision in a few weeks.

The second way a person can apply for asylum is if they have been placed in removal proceedings in Immigration Court. The applicant will then apply for asylum and the immigration judge will make the final determination as to whether the applicant meets the definition of a refugee.

There are several legal bars that will prevent a person from obtaining asylum in the United States. A person will be denied asylum if that person is found to have ever committed an act of terrorism, been involved in the persecution of others, committed a particularly serious crime in the U.S. or is considered to be a danger to U.S. security. Other bars to asylum include the possibility of safely residing in a third country or the circumstances materially affecting the applicant's eligibility for asylum.

A person who is granted asylum takes on the legal status of Asylee. This allows him or her to reside in the United States as long as the threat of persecution in his or her home country continues. The Asylee can also have his or her spouse and unmarried children under age 21 enter the United States, if not already in the country. Additionally, an Asylee can receive a travel document to travel in an out of the U.S. as well as employment authorization. Finally, a year after an Asylee has been granted asylum, he or she becomes eligible to apply for permanent residency.

For more information on asylum or to determine if you may be eligible for asylum in the United States, please contact us.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and Immigration Law Answers Blog.

Religious Workers In The United States

Category: Immigration Laws

Leaders of religious organizations and institutes are often unaware that they have the ability to hire and sponsor foreign nationals to work in the United States. The R-1 religious worker visa is a nonimmigrant visa that allows foreign nationals in religious occupations to enter into the United States and perform the duties of a religious worker.

Persons seeking R-1 status must plan to enter the United States solely to:

• Carry on the vocation of a minister of the religious denomination; or

• Work in a professional capacity in a religious vocation or occupation or organization within the denomination; or

• Work in a religious vocation or occupation for an organization within the denomination, or for a bona fide organization, that is affiliated with the religious denomination. Bona fide religious organizations in the United States must have tax-exempt status as an organization as described in section 501(c)(3) of the Internal Revenue Code of 1986.

The initial admission period for religious workers entering the United States in R-1 status is limited to three years. Extensions of the R-1 status may be granted, but the total period for a person residing in the United States on R-1 status may not exceed a total of five years.

The R-1 visa also allows for a foreign national to engage in studies, travel freely in and out of the U.S., receive payment for services, and apply for permanent residency (green card). Additionally, the spouse and any children under the age of 21 years of an R-1 holder may also live in the U.S. If a religious worker is interested in obtaining permanent residency, his or her spouse and children under the age of 21 are also included in the immigrant visa petition, so that they are eligible to apply for permanent residence once the petition is approved. In addition, family members in the United States are eligible for work authorization while the applications for permanent residence are pending.

The processing time for an R-1 visa petition is normally around three months, but a decision can be reached in 15 days for an additional fee. Once the petition is approved, consular processing normally takes three to four months.

The law firm of Kraft & Associates can help you determine if you are eligible to sponsor a person for a religious worker visa. We will help you file all the necessary petitions and see the process through to conclusion. Should you have any questions regarding religious visas, please do not hesitate to contact us.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

Immigration Consequences Of Criminal Convictions

Category: Immigration Laws

Introduction

For non-citizens, the immigration consequences of a criminal conviction may be far greater than any punishment of jail time, probation or a fine. For those non-citizens who are convicted of crimes, particularly those given state or federal prison sentences, Immigration Services will most likely begin proceedings to deport them from the United States. In many cases deportation will result regardless of the length of time in the United States, family ties in the United States, or even the severity of the crime committed.

Based on a criminal conviction, a client might be subject to deportation, and in some cases be permanently barred from the United States. In other cases, criminal conduct may preclude a finding of good moral character under the Immigration and Nationality Act, which is a requirement for naturalization.

In other situations, the immigration consequences of criminal activity can include delays in obtaining visas to the U.S. and denial of immigration benefits while in the United States.

To complicate matters, the Immigration and Nationality Act has developed its own definition for what constitutes a "conviction." For example, the definition of "conviction" includes a guilty plea or deferred adjudication. This ambiguity in the definition of conviction has led to attorneys erroneously advising their clients to accept deferred adjudication believing that this would not constitute a conviction under immigration law.

Deportation Issues

An alien with a criminal record may be barred from admission to the United States. In general, among others, crimes of moral turpitude, drug offenses, multiple offenses, and engaging in prostitution or procuring prostitutes within the past ten years will be considered as criminal grounds and can make the alien subject to being barred from future legal admission to the United States.

Additionally, most drug offenses under the U.S. immigration laws may result in deportation from the United States, depending on the type of controlled substance involved. This includes violations of any law or regulation relating to a controlled substance, no matter whether the law is federal, state or foreign. These laws cover persons with a past conviction or admission of committing offenses. They may also include any person that a USCIS officer knows, or has reason to believe, is a drug trafficker.

Naturalization Issues

When applying for citizenship, it is necessary to show that the applicant has been a person of "good moral character" for the past five years. If there was any criminal conviction during this period, however, it is possible that the naturalization application will be denied.

Additionally, if a criminal conviction is brought to light while applying for naturalization, a person may be placed in removal proceedings. There is a wide variety of acts (some that do not even need to result in a criminal conviction) that will result in a person's application for naturalization being denied.

Filing H-1B Visa Petitions in 2007

Category: Immigration Laws

The H-1B visa will allow persons to begin working in the United States on October 1, 2007. Immigration Services will begin accepting H-1B visa petitions beginning April 1, 2007. In anticipation of this event, foreign nationals who are in the United States, or who are wanting to work in the U.S., should begin planning now in order to make sure their visa petition is filed on time.

The H-1B visa is often used as the "next step" after one graduates from a university after completion of an F-1 program. H-1B holders are allowed to remain in the United States for a total of six years. The H-1B visa is reserved for those who will work in a "speciality" occupation. This means that a company requires the services of a professional who holds at least a bachelor's degree or its equivalent. Generally, most H-1B applicants are doctors, engineers, professors, accountants, lawyers, physical therapists, and computer professionals.

If you plan to work in the U.S. on a temporary basis it is important that you and your employer begin the visa petition process as soon as possible. Every year, Congress makes 65,000 H-1B visas available. Last year, Immigration Services announced that May 26, 2006, was the last day that visa petitions would be accepted. Those who did not file before this date would not be able to begin working on an H-1B visa.

Because of the complex issues involved with an H-1B visa, it is not recommended that a foreign national or a sponsoring employer prepare and submit an H-1B petition on their own. Improperly preparing a H-1B petition can result in a foreign national losing their immigration status and becoming removable from the U.S. It may also result in an employer hiring a worker who doesn't have work authorization and thus subjecting itself to possible fines and penalties.

At the law firm of Kraft & Associates, we will work to make sure that your petition is filed correctly and in advance of the cap being reached. Please contact us if you have questions about H-1B visas, and we will give you a free phone consultation.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

NSEERS - National Security Entry-Exit Registration System

Category: Immigration Laws

Special Registration Procedures

The United States set up a program known as the National Security Entry-Exit Registration System (NSEERS) after September 11, 2002, for the protection of those residing in the United States. NSEERS is targeted specifically toward foreign nationals born in specific countries on or before November 15, 1986. Men and women from the following countries must register with NSEERS:

Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, and Yemen.

NSEERS is a way to keep track of certain people from one of these countries who would like to enter or leave the United States. There are more than 35 million immigrants registered in this system and they are required to register with immigration authorities at a port of entry or at the ICE office.

A foreign national who has to go through this procedure, must notify the authorities of any address changes, changes in employment and changes in schools attended. The notification has to be done within 10 days from the date the change takes place and after the foreign national has been in the United States for 30 days or more. Students can make their notification of address changes through Student and Exchange Visitor Information System.

It is possible that foreign nationals who have to register with NSEERS would have to show proof of their registration with NSEERS if they want to file a petition or application with the U.S. Citizenship and Immigration Services (USCIS). If that person is unable to provide proof of registration, he or she would then be sent by the USCIS to an ICE office for an NSEERS interview to find out what can be done at that point.

Those who are in the United States on a nonimmigrant visa and who fail to register regularly or meet the requirements of NSEERS during their stay in the U.S. will be considered out of status. They are then subject to being arrested, being held in detention, given fines and/or being removed from the United States. This could also affect any future rights this person would have for coming to the United States. These decisions, however, are made on an individual basis and depend on the circumstances of that person's particular case.

United States citizens and lawful permanent residents, refugees, certain asylum applicants, those who have been granted asylum, diplomats and those who have been admitted into the U.S. with "A" or "G" visas are exempt from registering under NSEERS.

The good news for those who have to register with NSEERS, but have not gone through the process correctly, is that they are able to request a waiver for all or parts of the special registration requirements as long as this is done within one year. The request has to be made in letter form, and needs to be sent to the Customs and Border Protection (CBP). The CBP will give rulings only for requests that include relief from arrival or departure registrations. The request letter, which is sent to the director of the port of entry where the foreign national will be applying for entry, needs to be accompanied by a detailed description of the relief being requested, the name of the applicant, date of birth, a Fingerprint Identification Number and one passport style photograph. Along with all of these, any documents that support the person's application should be included.

It is important to note that if the waiver is not approved in writing prior to the interview or the person's departure date, the person needs to appear for the interview or report to the port of departure office.

In addition, if someone wishes not to go through the registration procedures on a regular basis, that person needs to provide a written explanation for why he or she should be excluded from the special registration procedures. The request needs to be sent to the INS district office in the area where that person is living. While that person is waiting for a response, all the special registration procedures need to be followed until the INS notifies the person in writing that the request has been approved.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

Unskilled Labor Visas Hard To Get

Category: Immigration Laws

The Dallas Morning News has a good article about the scarcity of work visas for unskilled labor, and the effect this shortage has on businesses seeking workers. Only 5,000 work visas are available every year for unskilled laborers.

The article quotes Doris Meissner, former commissioner of the Immigration and Naturalization Service:

"There are only 5,000 visas in the system for people to come that way," said Ms. Meissner, now a senior fellow at the nonpartisan Migration Policy Institute. "There are probably 500,000 people added to the illegal population each year, and the large majority are unskilled. Things are so out of kilter."

Ms. Meissner's task force called for a restructuring of the chaotic visa system and stronger employment-based immigration policies.

Initially, the plan calls for:

• Temporary visas to be issued for short-term stays and work assignments.

• Provisional visas to allow employers to recruit foreign-born workers for permanent jobs and possible future immigration.

• And permanent immigration for those who graduate from provisional status.

The system initially would allow about 1.5 million visas a year.

Another Lawsuit Challenges City's Anti-Immigrant Laws

Category: Immigration Laws

Another lawsuit has been filed against the Texas city of Farmers Branch, in an effort to prevent the city from enforcing recently-passed laws dealing with immigrants.

This suit is brought by The American Civil Liberties Union of Texas and the Mexican-American Legal Defense and Educational Fund. They are attempting to block a city ordinance that would fine apartment owners up to $500 a day for renting to illegal immigrants. The ordinance is to go into effect January 12, 2007.

The gist of the suit is that it will force families to break up, and it discriminates against Latinos. This lawsuit is the third to be filed against Farmers Branch since the new ordinances were passed late last year.

Recent Immigration Raids -- Really About Identity Theft?

Category: Immigration Laws

Columnist Ruben Navarrette Jr. has an opinion piece at CNN online today in which he attributes a sinister motive to the "spin" Immigration and Customs Enforcement put on the recent raids at Swift & Company's meat packing plants in several states. Navarrette objects to the depiction of the raids as a crackdown on identity theft. Excerpts from the article:

The worry used to be that illegal immigrants were stealing welfare. Then it was jobs. Now, we're told, they're stealing people's identities.

For as long as anyone can remember, illegal immigrants have been working with the aid of bogus Social Security numbers. And this was seen for what it was -- a violation of U.S. immigration law.

But last week, when Immigration and Customs Enforcement rounded up 1,282 illegal immigrants by raiding meat processing plants in six states -- Colorado, Texas, Iowa, Nebraska, Minnesota and Utah -- the operation was marketed as a crackdown on identity theft.

Why spin this as a crackdown on identity theft? That has a sinister ring to it, as if illegal immigrants were using stolen credit cards and withdrawing money from ATMs. More than likely, the extent of it was that people were using Social Security numbers that didn't belong to them so they could work at dirty jobs that Americans wouldn't do -- just as they have for generations, before the phrase "identity theft" entered the national lexicon.

Of course, if this were presented as an immigration crackdown, people might ask: Why were no charges filed against the employer -- Swift & Co? The world's second-largest meat processing company has "never condoned the employment of unauthorized workers, nor ... knowingly hired such individuals," Swift & Co. President and CEO Sam Rovit said in a statement.

Note the word: knowingly. Rovit didn't just fall off the meat wagon. He's read the statute. The 1986 Immigration Reform and Control Act made it a crime to "knowingly" hire illegal immigrants.

That's a monster loophole. Suddenly, whenever there is a raid, no one knows anything. Illegal workers? Who? What? Where?

It's cynical, and it's the sort of thing that makes it hard to believe that Americans are serious about combating illegal immigration. How can we be if we don't address the problem at its source?

For more information about immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and Immigration Law Answers Blog.

Supreme Court Rules In Favor Of Immigrants

Category: Immigration Laws

Immigration courts have often deported immigrants residing in the United States for minor drug offenses. This occurred because under the Immigration and Nationality Act any immigrant convicted of an aggravated felony was deportable. An aggravated felony included any felony punishable under the Controlled Substances Act.

As a result of this, thousands of immigrants were deported from the United States. Minor drug convictions under state law were being used to remove aliens from the U.S. However, the U.S. Supreme Court decided on December 5, 2006, that immigration courts cannot deport aliens convicted of minor state drug offenses that are not felonies under federal law.

Immigration is currently regulated under federal law. Therefore, in order for a person to be deported, the offense committed must be considered to be an aggravated felony under federal law, regardless of its categorization under state law.

Currently, those who are convicted of misdemeanors (both felony and state) are allowed to apply for certain waivers if they are placed in removal proceedings. This is not an option for those who have been convicted of felonies. The Supreme Court now holds that the only time when a waiver is not available to an immigrant in deportation proceedings is for a crime that is a felony under federal law.

The decision by the Supreme Court will certainly reduce the number of people who are deported from the United States each year for minor drug offenses. The Supreme Court also made it easier for some immigrants convicted of drug possession under state law to remain in the country.

For more information about immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, visas, naturalization and other immigration subjects, please visit Immigration Law Answers and Immigration Law Answers Blog.

Bringing Your Fiance / Fiancee to the U.S.

Category: Immigration Laws

(For simplicity, we will use the word "fiancee" whether speaking of a male or a female. For some reason, the accent mark in fiancee isn't showing properly, so we'll omit it.)

Bringing your fiancee to the U.S. for marriage will require some sort of visa for him or her. In the United States, the only visa available for the purpose of marriage is a fiancee visa (K-1 visa). Unfortunately, there is no other visa available for those who want to enter the U.S. in order to get married.

In order to file a petition for your fiancee to enter the U.S. on a K-1 visa, the following requirements must be met:

1. You must be a U.S. citizen.
2. You must have met with your fiancee in person within the previous two years.
3. Both you and your fiancee are legally free to marry.
4. You meet certain minimum income requirements.
5. Your fiancee does not have a criminal record.
6. Your fiancee has not violated certain U.S. immigration laws.

You may also apply (on the same petition) to bring your fiancee's unmarried children, who are under age 21, to the United States. Legal permanent residents may not file petitions for fiancee visas, although they may petition for the immigration of their new spouse after the wedding

Once the visa petition is filed in the U.S., it takes approximately four to six months to obtain approval. Once the petition is approved, an interview will be scheduled for your fiancee in his or her home country. If the case is approved, your fiancee will be issued a K-1 visa in their passport.

Your fiancee must remain unmarried until the arrival of the fiancee in the United States. The marriage must take place within 90 days of your fiancee entering the United States. If the marriage does not take place within 90 days or your fiancee marries someone other than you (the U.S. citizen filing the petition), your fiancee will be required to leave the United States.

Finally, many people who intend on marrying in the United States try to obtain a tourist visa to enter the U.S. since the time it takes to obtain a tourist visa may be much less than that of a fiancee visa. However, if someone marries while visiting you on one of those visas, their legal status in the USA will be questionable, and they may be refused permanent resident status on the basis of visa fraud if Immigration Services believes that their aim of visiting United States was simply for marrying a U.S. Citizen.

For more information about immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, visas, naturalization and other immigration subjects, please visit Immigration Law Answers and Immigration Law Answers Blog.

Somewhat Dangerous Path To Citizenship

Category: Immigration Laws

The Dallas Morning News had an interesting story this week about immigrants who can become citizens by enlisting in the U.S. military. This is an enticing path to citizenship because the process is accelerated. There is some controversy however in having so many non-citizens in the military branches. The article begins:

They come from Mexico, Nigeria, Afghanistan, Colombia, Cambodia and a hundred other countries across the globe to find the promise of America. Increasingly they enlist to fight, and sometimes die, in America's wars.

About 69,300 foreign-born men and women serve in the U.S. armed forces, roughly 5 percent of the total active-duty force, according to the most recent data. Of those, 43 percent - 29,800 - are not U.S. citizens. The Pentagon says more than 100 immigrant soldiers have died in combat in Iraq and Afghanistan.

In the wake of the Sept. 11, 2001, attacks, President Bush and Congress, citing long-established wartime powers, streamlined the process by which immigrants in the armed forces could become naturalized citizens.

As of October, more than 25,000 immigrant soldiers had become U.S. citizens as a result. Another 40,000 are believed eligible to apply. And roughly a third of noncitizens in the all-volunteer military come from Mexico and Central America.

"Latinos are very patriotic and see military service as a way to show their appreciation to America and to prove they can be 'real Americans,' " said Dr. Jorge Mariscal, director of Chicano Studies at the University of California at San Diego.

But he questions the attention that military recruiters give Latino immigrant neighborhoods.

"The efforts of recruiters tends to undermine community efforts to get these kids better civilian educational opportunities and pushes them into low-echelon enlisted positions with a higher risk of seeing combat," he said. "Until the playing field is level, we're only going to create a class of combat soldiers drawn from immigrants and the working class."

Conservative critics fear that increased reliance on an immigrant-based military may create security problems and turn the U.S. armed forces into a "green-card army" where citizenship becomes just another recruiting tool.

"Service to the country is good. But my concern is that by taking in too many noncitizens into the military, we separate service and duty from citizenship," said Mark Krikorian, executive director of the Center for Immigration Studies, which favors stricter immigration controls.

Cactus, Texas Confirms Need For Comprehensive Immigration Reform

Category: Immigration Laws

Today's Dallas Morning News has a thought-provoking editorial about the Texas panhandle town of Cactus, where approximately half the population is illegal, and most work at the Swift meat-processing plant.

The Face of Desperation: Cactus confirms need for reform

There's no reason to move to Cactus, a lonesome and woebegone Texas Panhandle town. There's not much there aside from a Swift & Co. meatpacking plant, where the work is nasty and bone-crushingly hard. But as The Dallas Morning News reported in a three-part series last week, the slaughterhouse draws thousands of workers from Mexico and Central America who come out of raw desperation. Town officials estimate that three of every four people living there are illegal immigrants.

Anyone who romanticizes the illegal migrant worker population should talk to Cactus officials. The town is chaotic and crime-ridden. There's drunkenness and drug abuse, robbery and prostitution, and fraudulent schemes that exist solely because illegal immigrants are easy targets for exploitation. Zoning and food safety regulations might as well not exist. Cops are overwhelmed. The rule of law is, in many cases, nothing more than a nice idea.

Lawlessness is intolerable.

So, round 'em up and ship 'em home? Do that, the plant closes and the town dies. Period. Does anybody really think Americans are going to be willing to relocate to this miserable hamlet, where, according to the News reporters, "most yards are dirt, weeds and gravel" - and to do so for grim, backbreaking jobs that pay little more than twice the minimum wage? Said a local preacher who ministers to the exhausted workers, "It is a job for animals."

But these are not animals. These are human beings who toil largely beyond the protection of labor laws, for employers who drive them to work harder and faster, putting cheaper meat on American dinner tables.

Grinding the face of the poor is also intolerable.

Whether you're a friend or foe of the lawbreaking migrants, it's easy to maintain opinions and an untroubled mind about the crisis when you don't have to live face-to-face with its complex legal, economic and moral realities.

Nothing about this crisis is abstract in Cactus. Cactus is reality. Nobody in Cactus can live in denial about the urgent need for comprehensive immigration reform to account for hard facts. We can't let Cactuses grow indefinitely. That this situation festers because America chooses denial is perhaps the most intolerable thing of all.

Important Election Information You Need To Know

Category: Political or Judicial

Vote411.org is an excellent educational site that will give you pretty much all the information you could ever need regarding the election November 7, 2006. Check it out before you vote.

November 2006 Visa Bulletin -- U.S. Department Of State

Category: Visa Bulletin

The U.S. Department of State has issued the Visa Bulletin for November. You can see the entire bulletin at the State Department Web site. We have copied important sections below:

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Family	All Charge- ability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPP-INES
1st	22APR01	22APR01	22APR01	01JUL93	15NOV91
2A	01SEP01	01SEP01	01SEP01	01DEC99	01SEP01
2B	01FEB97	01FEB97	01FEB97	22FEB92	15AUG96
3rd	15NOV98	15NOV98	15NOV98	01JAN95	08FEB91
4th	22OCT95	22APR95	01AUG95	22OCT93	01MAY84

*NOTE: For November, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01DEC99. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT  MEXICO with priority dates beginning 01DEC99 and earlier than 01SEP01. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

Employ-ment -Based	All Charge-ability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIP-PINES
1st	C	C	C	C	C
2nd	C	15APR05	01JAN03	C	C
3rd	01JUL02	01JUL02	22APR01	08MAY01	01JUL02
Schedule A Workers	01OCT05	01OCT05	01OCT05	01OCT05	01OCT05
Other Workers	01MAY01	01MAY01	01MAY01	01MAY01	01MAY01
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th	C	C	C	C	C
Targeted Employ-ment Areas/ Regional Centers	C	C	C	C	C

The Department of State has available a recorded message with visa availability information which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105 - 139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This reduction has resulted in the DV-2007 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For November, immigrant numbers in the DV category are available to qualified DV-2007 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region	All DV Chargeability Areas Except Those Listed Separately
AFRICA	8,500	Except: Egypt 5,600 Ethiopia 5,600 Nigeria 4,300
ASIA	2,600
EUROPE	5,700
NORTH AMERICA (BAHAMAS)	6
OCEANIA	280
SOUTH AMERICA, and the CARIBBEAN	350

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2007 program ends as of September 30, 2007. DV visas may not be issued to DV-2007 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2007 principals are only entitled to derivative DV status until September 30, 2007. DV visa availability through the very end of FY-2007 cannot be taken for granted. Numbers could be exhausted prior to September 30.

2008 Diversity Visa Lottery Program

Category: Immigration Laws

The U.S. State Department has released information about how to register for the fiscal year 2008 Diversity Lottery. Entries must be received between noon (Eastern Time) on October 4, 2006, and noon on Sunday, December 3, 2006. Applicants may access the electronic Diversity Visa entry form at dvlottery.state.gov during the registration period. Paper Entries will no longer be accepted.

A maximum of up to 55,000 Diversity Visas (DV) each fiscal year will be made available to persons from countries with low rates of immigration to the United States. Citizens of countries that have more that 50,000 persons immigrate to the United States each year are not eligible to participate in the Diversity Lottery Visa Program.

Requirements for Lottery Entry:

1. Citizens of the following countries ARE NOT eligible to participate: Canada, China (mainland born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Poland, Russia, South Korea, United Kingdom and its dependent territories, and Vietnam.

2. However, even if you are from one of the above-mentioned countries, you may still be able to participate in the Diversity Lottery program. First, if you were born in a country that is not eligible, but your spouse was born in a country that is eligible, you can register for the lottery. Second, if you were born in one of the ineligible countries, but neither of your parents was born there or resided there at the time of your birth, you may apply for the program if at least one of your parents was born in an eligible country.

3. Applicants must meet either the education or training requirement of the diversity lottery program. You must have EITHER a high school education (or its equivalent), OR two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. Visit the State Department Web site for a list of qualifying occupations.

If you cannot meet these requirements, you should NOT submit an entry.

Important Facts

1. Submitting more than one application will disqualify you from registration. Every application received will have an equal chance of being selected.

2. No fee is charged to enter the diversity visa lottery program.

3. Those applicants who are selected will be notified by the Kentucky Consular Center with specific instructions on how to proceed. Persons not selected will not receive any notification.

4. In order to receive the immigrant visa, you must meet all eligibility requirements under U.S. law. This means that persons who have previously entered the country illegally, have criminal convictions, or who are from countries identified as sponsors of terrorism will not be eligible for the visa.

For more information, please visit the State Department's detailed instructions for Diversity Visa Lottery application.

Without Migrant Labor, Fruit Is Rotting On The Vine

Category: Immigration Laws

Yet another story about the effect on growers of the current uncertainty about immigration laws appeared in the New York Times recently. The focus of this article was the fruit growers of California. Here are a few excerpts:

Stepped-up border enforcement kept many illegal Mexican migrant workers out of California this year, farmers and labor contractors said, putting new strains on the state's shrinking seasonal farm labor force.

Labor shortages have also been reported by apple growers in Washington and upstate New York. Growers have gone from frustrated to furious with Congress, which has all but given up on passing legislation this year to create an agricultural guest-worker program.

Last week, 300 growers representing every major agricultural state rallied on the front lawn of the Capitol carrying baskets of fruit to express their ire.

This year's shortages are compounding a flight from the fields by Mexican workers already in the United States. As it has become harder to get into this country, many illegal immigrants have been reluctant to return to Mexico in the off-season. Remaining here year-round, they have gravitated toward more stable jobs.

"When you're having to pay housing costs, it's very difficult to survive and wait for the next agricultural season to come around," said Jack King, head of national affairs for the California Farm Bureau Federation.

California farms employ at least 450,000 people at the peak of the harvest, with farm workers progressing from one crop to the next, stringing together as much as seven months of work. Growers estimate the state fell short this harvest season by 70,000 workers. Joe Bautista, a labor contractor from Stockton who brings crews to Lake County, said about one-third of his regular workers stayed home in Mexico this year, while others were caught by the Border Patrol trying to enter the United States.

As they sum up this season's losses, estimated to be at least $10 million for California pear farmers alone, growers in the state mainly blame Republican lawmakers in Washington for stalling immigration legislation that would have addressed the shortage by authorizing a guest-worker program for agriculture. Many growers, a dependably Republican group, said they felt betrayed.

"After a while, you get done being sad and start being really angry," said Toni Scully, a lifelong Republican whose family owns a pear-packing operation in Lake County. "The Republicans have given us a lot of lip service, and our crops are hanging on the trees rotting."

Stiff Colorado Illegal Alien Law Brings Unexpected Costs

Category: Immigration Laws

As reported in a Rocky Mountain News article, Colorado's new tougher immigration enforcement law may have unexpected costs. Several state agencies have put in requests for a combined $2.5 million in budget increases in order to properly implement the new law. Supporters of the bill had said the agencies would be able to handle any increased workload within their original budgets. Excerpts from the article:

The Colorado legislature passed the measure during a special session in July, a law some say imposes the toughest immigration rules in the nation.

House Bill 1023 went into effect Aug. 1 and establishes strict identification rules that require tens of thousands of Coloradans to prove to local and state agencies they're in the country legally before they can obtain most government benefits.

Several agencies said Monday they are still working to identify the programs that fall under the law's umbrella as well as 15 other measures passed this summer and last spring that overlap and present their own set of challenges.

The Department of Revenue, for example, has fielded numerous complaints of longer wait times at DMV offices as clerks verify the legal immigration status of people applying for licenses and identification cards.

Also, more than 1,700 people have been caught attempting to use fake documents to get a driver's license or ID card in just the first month of the new law.

Meanwhile, Colorado's 64 counties are in charge of administering welfare benefits such as food stamps and Medicaid to more than 100,000 residents. And, many county human services departments have had to hire additional workers to verify the legal status of people applying for benefits, said Liz McDonough, spokeswoman for the Colorado Department of Human Services.

"We're getting into the more difficult areas of the legislation to determine certain aspects of what services are in or out," she said. "You can predict some of the costs and certain things, but as more things and more situations come to light, we'll have to determine the needs accordingly."

State officials said it will likely take months before they clearly understand the costs and scope of the new immigration laws. "It's important to remember that we're two months out from the special session. It's relatively soon," Sobanet said. "If it turns out that people were getting benefits they shouldn't have been, then we may see a reduction in costs. But that remains to be seen."

Texans Beware: Plan Ahead Before Popping Across The Border

Category: Immigration Laws

The Department of Homeland Security is in the process of implementing a new travel policy that will require U.S.citizens to carry a passport when returning from Mexico, Canada, or the Caribbean. This is a big change from the current situation, where citizens with little more than a drivers license can come and go across borders with ease.

The new rules will go into effect at the beginning of 2007. The current proposal is that as of January 8, 2007, the rules will apply to air and sea travel to Mexico, Canada and the Caribbean. Passports will be required for overland crossings by January 1, 2008.

So no more spur-of-the-moment shopping trips to Mexico for Texans in border communities, and perhaps substantial decreases in tourists taking cruises to Mexico or the Caribbean. The expense and waiting time to acquire a U.S. Passport may deter tourists and shoppers alike.

Estimates are that only 27% of U.S. Citizens have passports. My advice is to apply for a passport now, if you don't already have one. You never know when you might need one in a hurry.