Immigration through Employment or Investment
There are numerous ways to work lawfully in one’s profession in the United States, whether you’re an individual seeking to immigrate or a company seeking to expand overseas. We can help guide you to the one that is appropriate for you or your company’s employees, depending on you or your company’s specific circumstances.
Temporary Work Visa Applications
- Post-Completion Optional Practical Training (“OPT”) – upon completion of an academic program in F-1 status, students may apply for OPT to obtain employment authorization to work in their field.
- E-2 – for investors who are citizens of countries with bilateral treaties with the U.S., who have made or are actively in the process of making a substantial investment in the U.S. relative to the type of business being established or purchased.
- E-3 – for Australians to work in a specialty occupation (requiring a bachelor’s degree or higher) for which the person possesses the required degree and experience.
- H-1B – to work in a specialty occupation (requiring a bachelor’s degree or higher) for which the person possesses the required degree and experience, and for fashion models of distinguished merit and ability. Only 65,000 new H-1B visas are available each year, plus an additional 20,000 for persons who obtained a master’s Degree or higher at a non-profit U.S. academic institution.
- H-3 – to receive training that is unavailable in one’s home country or to participate in an exchange visitor program for practical training in the education of children with special needs.
- L-1A and L-1B – to transfer executives, managers and employees with specialized knowledge from a foreign entity to work in the U.S. for an entity that is a branch, parent, subsidiary, affiliate or a joint venture.
- O-1 – for persons of extraordinary ability in the sciences, arts, education, business, athletics, or movie and television industry.
- TN NAFTA Professionals – for Canadians and Mexicans to work in professions such as accountants, architects, computer systems analysts, doctors, engineers, pharmacists, scientists, teachers and veterinarians.
Permanent Employment Based Green Card Applications
- EB-1: For persons with extraordinary ability in the sciences, arts, education, business or athletics, outstanding professors or researchers, multinational managers or executives. This category of employment-based petitions does not require a Labor Certification (PERM).
- EB-2: For members of a profession requiring an advanced degree, persons with exceptional ability in the sciences, arts or business, or persons seeking a national interest waiver. Most of the petitions in this category require a Labor Certification (PERM), except those filed with a National Interest Waiver. Certain positions, such as physical therapists, do not need the Department of Labor to certify the Labor Certification prior to filing the I-140 Immigrant Visa Petition, but file an uncertified Labor Certification to USCIS with the I-140 Immigrant Visa Petition.
- EB-3: For skilled workers (i.e. for jobs requiring at least two years training or experience), professionals with bachelor’s degrees related to the field in which they are seeking employment in the U.S., or unskilled workers (i.e. for jobs requiring less than two years of training or experience). Petitions in this category require a Labor Certification (PERM), however, Schedule A positions such as physical therapists do not need the Department of Labor to certify the Labor Certification prior to filing the I-140 Immigrant Visa Petition, but file an uncertified Labor Certification to USCIS with the I-140 Immigrant Visa Petition.
- EB-5: For persons who have invested, or are actively in the process of investing, at least $1,000,000 USD (or $500,000 USD in targeted employment areas) in a new commercial enterprise which will create at least ten full-time positions for U.S. workers. EB-5 Petitions do not require a Labor Certification (PERM).
We are especially passionate about family immigration and work tirelessly on your behalf through the appropriate option to reach a resolution.
Petitions for Relatives
- Fiancée visas – A U.S. Citizen may sponsor his/her fiancée, and the fiancée’s unmarried children under 21 years of age, to obtain a K-1 visa (K-2 for children) to enter the United States prior to marriage. People who enter on fiancée visas must be legally free to marry and must marry within 90 days to remain in the U.S. lawfully; and must apply for a green card through adjustment of status.
- I-130 Petitions – A U.S. Citizen may sponsor his/her spouse, parents, children, adult sons and daughters and siblings for permanent residence. Lawful Permanent Residents may also file I-130 Petitions for their spouses, children and adult sons and daughters.
Adjustment of Status Applications
These are applications for a green card filed within the United States. In the family-based context, Adjustment of Status Applications are filed based on an approved, pending, or simultaneously filed I-130 Petition for Alien Relative.
- Grandfathering under INA Sec. 245(i) or the LIFE Act: Most persons must have been inspected and admitted (came with a U.S. visa) to the U.S. to be eligible to adjust status and must be in status – meaning that their authorized stay in the United States is still valid in order to adjust status in the United States (unless married to a U.S. Citizen or if you are the parent of a U.S. Citizen who filed an I-130 Petition for you). One exception to this if the applicant was the direct beneficiary or derivative (spouse or child) beneficiary of an I-130, I-140, I-360 or I-526 Petition or Labor Certification that was filed on or before April 30, 2001. The Petition or Labor Certification must have been properly filed and approvable when filed.
Consular Processing Immigrant Visas
In the family immigration context, this is the process through which a person who is the beneficiary of an approved I-130 Petition for Alien Relative obtains an immigrant visa by attending an interview at a U.S. Embassy or Consulate abroad. Upon entering the U.S. on an immigrant visa, a person will be a permanent resident of the United States.
Waivers of Inadmissibility
Waivers are available to overcome or “forgive” prior conduct that would make an applicant for adjustment of status or an immigrant visa not eligible for status as a green card holder. Common reasons for inadmissibility are criminal convictions, prior fraud or material misrepresentations of material fact, having entered the U.S. without inspection, having entered the U.S. with a crewman’s visa, having overstayed one’s time in the United States and then departed, or a prior deportation or removal from the U.S. There are several ways to achieve this.
- I-212 – This form is used to request forgiveness for a prior removal or deportation from the U.S. Applicants for permission to reapply for an immigrant visa after a removal or deportation must be the spouse or son or daughter of a United States citizen or lawful permanent residence; and must establish that refusal would result in extreme hardship to his or her citizen or lawfully resident spouse or parent.
- I-601 – This form is used to request forgiveness for fraud, misrepresentations and crimes involving moral turpitude. For fraud/misrepresentation waivers, the applicant must be the son, daughter or spouse of a U.S. Citizen or Lawful Permanent Resident and must prove the U.S. Citizen or Permanent Resident spouse or parent would suffer extreme hardship if the applicant’s admission is refused. For waivers of inadmissibility related to the commission of a crime of moral turpitude the applicant may be the spouse, parent or son or daughter of a U.S. Citizen or Lawful Permanent Resident and must demonstrate extreme hardship to his or her U.S. Citizen or Permanent Resident spouse, parent or son or daughter.
- I-601A Provisional Waivers – This form is used to forgive anticipated/future unlawful presence where the beneficiary of an approved I-130 Petition for Alien relative is not eligible to adjust status in the United States. A person may be ineligible to adjust status in the United States if he or she entered the United States without inspection, was last admitted as a crewmember or is the beneficiary of a family preference category I-130 Petition (such as a parent or permanent resident spouse) and has overstayed his or her time in the U.S. To qualify for a provisional waiver, the applicant must prove he or she has a spouse or parent who is a U.S. Citizen or Lawful Permanent Resident who would suffer extreme hardship if the applicant is refused admission to the United States.
- I-751 Removal of Conditions – Persons who obtained green cards through marriage when they were married for less than two years will get conditional resident cards that expire after two years. These conditional residents must apply to remove the conditions on their residence status within 90 days of the expiration of their conditional resident cards. If the conditional resident cannot file the I-751 Petition jointly with his or her spouse, they may request a waiver of the joint filing requirement if they entered marriage in good faith, but the marriage was terminated through divorce, or if the petitioning spouse died or if the petitioning spouse subjected the conditional resident to battery or extreme cruelty.
Students and Recent Graduates
There are three ways we can help students.
- F-1 – for full-time students in an academic or a language program
- J-1 – for college students and recent graduates to participate in an exchange or training program, and for medical students.
- M-1 – for students in vocational or nonacademic programs.
There are two paths here. One is an R-1 Non-Immigrant Visa, which is a temporary visa for persons in religious vocations or occupations (such as ministers and nuns) to serve at least 20 hours per week within the religious institution. The petitioning religious institution must be a non-profit organization and the individual must have been a member of the religious denomination for at least two years prior to the filing of the petition.
The second path is an EB-4 Religious Worker Immigrant Petition. The EB-4 Process is initiated when the religious institution files an I-360 Petition for Religious Worker for its religious workers to obtain permanent residence. The Religious Worker must have served in a religious vocation or occupation for at least two years prior to the I-360 filing, the religious institution must be a non-profit organization, and the offered position must be full-time. There is no limit to the number of I-360 Religious Worker petitions for ministers, however there is a 5,000 annual cap on the I-360 Petitions for non-ministers.
It’s important to note that the EB-4 non-minister program sunsets on September 30, 2018 and this immigration process must be reauthorized for non-ministers to immigrate or adjust their status after this date.
Victims of Abuse, Persecution and Children
Abuse and Crime Victims
- A person may self-petition for a green card based on abuse under the Violence Against Women Act (“VAWA”). Both men and women who suffered abuse or extreme cruelty from their U.S. Citizen or Lawful Permanent Resident (green-card holder) spouses are eligible if they married in good faith, resided in the United States with the abuser and can demonstrate good moral character (i.e. do not have a serious criminal history). A person may self-petition up to two years after the termination (divorce or annulment) of the marriage with the abusive spouse. Abused children and parents of U.S. Citizens and Permanent Residents are also eligible to self-petition for green cards.
- T or U Visas are applicable for persons who have been victims of certain crimes including domestic violence, assault, human trafficking, indentured servitude, and rape, who cooperate with law enforcement authorities in reporting and providing other requested information about the crime. The waiting period to get a T or U visa is about four years. If the visa is approved, after about three years the victim may then apply for a green card.
Asylum, Withholding of Removal and Relief Under Convention Against Torture (CAT)
Persons who suffered past persecution or have a well-founded fear of future persecution based on their race, religion, nationality, membership in a particular social group (such as identifying as LGBTQ) may be eligible for asylum if they cannot obtain protection from their country’s authorities. It is important to note:
- Persons seeking asylum generally must apply for asylum within one year of entering the United States, except if certain extraordinary or exceptional circumstances exist such as changed country conditions or personal circumstances, long-term illness, or having been in status for a reasonable period prior to filing one’s application.
- Persons granted asylum become eligible for a green card one year after winning the asylum case.
- People who do not qualify for asylum (if for example, they did not file within the one-year deadline), may still be eligible for withholding of removal or relief under CAT. Withholding of removal and relief under the CAT is only granted until such time as the U.S. Government believes it is no longer a risk to the person’s life or liberty to be returned to his or her country. Withholding of Removal and CAT relief do not lead to a green card.
Special Immigrant Juveniles (SIJ)
Children who are under 21 years old who have been abused, neglected or abandoned by one or both of their parents may be eligible to apply for a green card under SIJ status. First, a court having jurisdiction to make findings about child custody (such as a Family Court) must enter a special findings order including who will be responsible for the child’s well-being. Then, USCIS will decide if the child qualifies for SIJ, and if so, whether the child will qualify for a green card.
Deferred Action for Childhood Arrivals (DACA)
DACA provides protection against removal (deportation) and work authorization for persons who:
- came to the U.S. prior to their 16th birthdays
- have resided in the U.S. continuously since June 15, 2007
- were physically present in the U.S. on June 15, 2012
- are in school, graduated high school or have a GED or honorably served in the U.S. armed forces
- do not have serious criminal history or pose a threat to the national security or public safety.
Currently, USCIS is only accepting and processing renewal applications for people who were already granted DACA status.
U.S. Citizenship and Naturalization
Persons born to U.S. Citizens or born in the United States are U.S. Citizens at the time of birth. A minor who is a lawful permanent resident and resides with his or her custodial parent will acquire U.S. citizenship automatically if the parent naturalizes the minor before his/her 18th birthday.
This is the process for foreign nationals to apply for and be granted U.S. Citizenship. Applicants must be at least 18 years old, and demonstrate good moral character. In most cases they must also demonstrate an ability to read and write in English; and prove knowledge of U.S. history and civics. Usually a person must have been a lawful permanent resident for five years prior to becoming eligible to apply for naturalization, but spouses of U.S. Citizens and persons who obtained green cards as abused spouses can apply for citizenship after three years. Certain military members qualify to naturalize on an expedited basis.
Removal Defense Appeals and Federal Litigation
Persons placed in removal proceedings (deportation) in Immigration Court have the right to defend themselves and prove that they qualify for relief from removal, meaning they should be permitted to remain in the United States. Some relief from removal options include:
- Adjustment of Status – Immigration judges have the authority in certain circumstances to grant persons in removal proceedings adjustment of status (a green card).
- I-751 Removal of Conditions – Immigration judges have the authority to review I-751 Petitions that have been previously denied by USCIS.
- Asylum – Individuals who face a well-founded fear of persecution in their home countries can petition for asylum even if they are currently under deportation proceedings. In most circumstances, an applicant for asylum must apply within one year of entry or admission to the United States, unless changed circumstances or extraordinary circumstances exist. A person who has not met the one-year filing deadline may still be eligible for protection in the United States through Withholding of Removal or relief under the Convention Against Torture.
- Cancellation of removal – there are two paths here.
- EOIR 42A for Lawful Permanent Residents: Green card holders who become deportable due to certain criminal convictions may qualify for cancellation of removal, which will allow them to keep their green cards. They must have been present in the U.S. for at least seven years, have had a green card for at least five years, and have never been convicted of an aggravated felony.
- EOIR 42B for Non-Permanent Residents: Persons who have never had a green card may qualify for one in removal proceedings. They must have been in the U.S. for at least ten years, have a child, parent, or spouse who is a U.S. Citizen or Lawful Permanent Resident that would suffer exceptional and extremely unusual hardship if the applicant were deported, and be a person of good moral character.
- Waivers – Immigration judges may grant waivers (forgiveness) both to first time applicants for adjustment of status and Lawful Permanent Residents who are placed in removal proceedings due to certain criminal convictions.
- Fraud Waivers and Crime Waivers – Typically, the waivers presented with adjustment of status applications or for permanent residents are for fraud and crimes involving moral turpitude under INA Section 212(i) and INA Section 212(h) waivers. Applicants for these waivers must demonstrate a qualifying relative would suffer extreme hardship if the waiver is denied and the applicant is removed.
- INA Section 212(c) Waiver – Lawful Permanent Residents (green card holders) who are placed in removal proceedings and were convicted of certain crimes before April 1, 1997 may qualify for a waiver under INA Section 212(c) if they have been permanent residents for at least seven consecutive years and have not been convicted of any aggravated felony or felonies for which they served an aggregate prison sentence of more than five years.
- Termination, or dismissal, of a removal case may be appropriate where the Notice to Appear is defective or was improperly filed, or due to changes in law making the charge of removability inapplicable or incorrect.
- Appeals – If an immigration judge has denied your case, you may appeal it to the Board of Immigration Appeals (BIA). If the BIA dismisses your appeal, you may make a motion to reopen or reconsider your case, and/or you may file a Petition for Review with a U.S. Court of Appeals.
If your case has been pending with USCIS for an excessive amount of time or if USCIS has made a decision that is contrary to the law, you may file a lawsuit (called a Writ of Mandamus or APA Claim) in a U.S. District Court.