IMMIGRATION LAW
Family Petitions
This section describes how you (a U.S. citizen) may petition for certain family members to receive either a Green Card, a fiancé(e) visa or a K-3/K-4 visa based on your relationship.
Application Process: Green Card (Permanent Residence)
To petition for a family member to receive a Green Card (permanent residence), begin by filing Form I-130, Petition for Alien Relative. This form establishes the family relationship that exists between you and your relative. Sometimes the I-130 can be filed together with an application for permanent residence, officially known as Form I-485, Application to Register Permanent Residence or Adjust Status.
Visas are always available for immediate relatives of U.S. citizens. This means your family member does not need to wait in line for a visa. Immediate relatives who are in the United States can file Form I-485, Application to Register Permanent Residence or Adjust Status at the same time as Form I-130. For more information on how your relative can apply to adjust status (get a Green Card) while they are in the United States.
Preference categories apply to family members who are not immediate relatives. The visas allotted for these categories are subject to annual numerical limits. A visa becomes available to a preference category based on the priority date (the date the Form I-130 was filed). Preference categories are grouped as follows:
-
First preference: Unmarried, adult sons and daughters of U.S. citizens (adult means 21 or older.)
-
Second Preference (2A): Spouses of Green Card holders, unmarried children (under 21) of permanent residents Second Preference (2B): Unmarried adult sons and daughters of permanent residents
-
Third Preference: Married sons and daughters (any age) of U.S. citizens
-
Fourth Preference: Brothers and sisters of adult U.S. citizens
What Happens Next?
-
If your relative is already in the United States, they may apply to adjust status to become a Green Card holder (lawful permanent resident) after a visa number becomes available using Form I-485.
-
If your relative is outside the United States, your petition will be sent to the National Visa Center (NVC). The NVC will forward your petition to the appropriate U.S. consulate when a visa becomes available and your relative will be notified about how to proceed. This process is referred to as “consular processing.”
-
Your family member’s preference category will determine how long they will have to wait for an immigrant visa number. Once you have filed a petition.
ASYLUM
Every year people come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution due to:
-
Race
-
Religion
-
Nationality
-
Membership in a particular social group
-
Political opinion
If you are eligible for asylum you may be permitted to remain in the United States. To apply for Asylum, file a Form I-589, Application for Asylum and for Withholding of Removal, within one year of your arrival to the United States.
You may include your spouse and children who are in the United States on your application at the time you file or at any time until a final decision is made on your case. To include your child on your application, the child must be under 21 and unmarried.
You cannot apply for permission to work (employment authorization) in the United States at the same time you apply for asylum.
You may apply for employment authorization if:
-
150 days have passed since you filed your complete asylum application, excluding any delays caused by you (such as a request to reschedule your interview) AND
-
No decision has been made on your application
If you are granted asylum you may petition to bring your spouse and children to the United States. To include your child on your application, the child must be under 21 and unmarried. You must file the petition within two years of being granted asylum unless there are humanitarian reasons to excuse this deadline. You may apply for a green card one year after being granted asylum. You must submit a separate I-485 application packet for yourself and, if applicable, for each family member who received derivative asylum based on your case.
H-1B
Requirement 1 - You must have an employer-employee relationship with the petitioning U.S. employer.
In general, a valid employer-employee relationship is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker. In some cases, the sole or majority owner of the petitioning company or organization may be able to establish a valid employer-employee relationship, if the facts show that the petitioning entity has the right to control the beneficiary’s employment.
Requirement 2 - Your job must qualify as a specialty occupation by meeting one of the following criteria:
-
A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
-
The degree requirement is common for this position in the industry or the job is so complex or unique that it can only be performed by someone with at least a bachelor's degree in a field related to the position;
-
The employer normally requires a degree or its equivalent for the position; or
-
The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.
Requirement 3 - Your job must be in a specialty occupation related to your field of study.
Requirement 4 - You must be paid at least the actual or prevailing wage for your occupation, whichever is higher.
The prevailing wage is determined based on the position in which you will be employed and the geographic location where you will be working (among other factors). The U.S. Department of Labor (DOL) maintains a database with applicable current prevailing wage levels based on occupation and work location.
Requirement 5 - An H-1B visa number must be available at the time of filing the petition unless the petition is exempt from numerical limits.
The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap. Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date.
ADJUSTMENT OF STATUS
The Immigration and Nationality Act (INA) permits the change of an individual's immigration status while in the United States from nonimmigrant or parolee (temporary) to immigrant (permanent) if the individual was inspected and admitted or paroled into the United States and is able to meet all required qualifications for a green card (permanent residence) in a particular category. The common term for a change to permanent status is “adjustment of status.”
The INA provides an individual two primary paths to permanent resident status. Adjustment of status is the process by which an eligible individual already in the United States can get permanent resident status (a green card) without having to return to their home country to complete visa processing.
Consular processing is an alternate process for an individual outside the United States (or who is in the United States but is ineligible to adjust status) to obtain a visa abroad and enter the United States as a permanent resident) This pathway is referred to as “consular processing."
Determine Your Basis to Immigrate
The first step in the adjustment of status process is to determine if you fit into a specific immigrant category. Most immigrants become eligible for a green card (permanent residence) through a petition filed on your behalf by a family member or employer. Others become permanent residents through first obtaining refugee or asylum status, or through a number of other special provisions. To see the many different ways to get a green card, see the links to the left.
File the Immigrant Petition
When you know what category you believe best fits your situation, in most cases, you will need to have an immigrant petition filed on your behalf.
-
Family Based
-
Employment Based
-
Special Classes of Immigrants
-
Humanitarian Programs
Depending on the category you wish to adjust under, you may be eligible to have the petition filed at the same time that you file your Form I-485, Application to Register Permanent Residence or Adjust Status. This is called “concurrent filing.” Immediate relatives of a U.S. citizen may be able to file concurrently. Also, other certain classes of individuals who have a visa immediately available may be able to file concurrently. Most categories, however, require that you first establish your eligibility for the immigrant category by having an approved petition before you are allowed to file Form I-485, for these categories you will not be able to file concurrently.
After all paperwork has been received, interviews conducted (if necessary), security checks completed, and other eligibility requirements reviewed, your case will be ready for a decision by USCIS. In all cases, you will be notified of the decision in writing. The granting of permanent residency is generally recorded as the date that you became a permanent resident. Refugees and certain humanitarian parolees (e.g. Cuban, Lautenberg) will have their date of adjustment of status recorded as that of their entry into the United States as a refugee. Asylees, whether the principal filer or his/her derivatives, will have their date of adjustment recorded as 1 year prior to the date of being granted permanent residence.
NATURALIZATIONS
This section describes the most common path to U.S. citizenship, which allows a green card holder (permanent resident) of at least 5 years to apply for naturalization. Other paths include:
-
Green card holders married to U.S. citizens
-
Green card holders in the military and their family
-
Citizenship through parents
If you are a green card holder of at least 5 years, you must meet the following requirements in order to apply for naturalization:
-
Be 18 or older at the time of filing
-
Be a green card holder for at least 5 years immediately preceding the date of filing the Form N-400, Application for Naturalization
-
Have lived within the state, or USCIS district with jurisdiction over the applicant’s place of residence, for at least 3 months prior to the date of filing the application. Students may apply for naturalization either where they go to school or where their family lives (if they are still financially dependent on their parents).
-
Have continuous residence in the United States as a green card holder for at least 5 years immediately preceding the date of filing the application
-
Be physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing the application
-
Reside continuously within the United States from the date of application for naturalization up to the time of naturalization
-
Be able to read, write, and speak English and have knowledge and an understanding of U.S. history and government (civics).
-
Be a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States during all relevant periods under the law
O-1 (EXTRAORDINARY ABILITY)
The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.
The O nonimmigrant classification is commonly referred to as:
-
O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
-
O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
-
O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1
-
O-3: individuals who are the spouse or children of O-1’s and O-2’s
To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.
Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentages who has risen to the very top of the field of endeavor.
Extraordinary ability in the field of arts means distinction. The distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.
To qualify for an O-1 visa in the motion picture or television industry, the beneficiary must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.
A copy of any written contract between the petitioner and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed.
NOTE: USCIS will accept an oral contract, as evidenced by the summation of the elements of the oral agreement. Such evidence may include but is not limited to: emails between the contractual parties, a written summation of the terms of the agreement, or any other evidence which demonstrates that an oral agreement was created.
The O-1A visa is for people who are recognized as being at the very top of their field and who are coming to the United States to continue work in that field. To establish eligibility for an O-1A visa you must either have received a major, internationally recognized award, similar to a Nobel Prize, or submit evidence that affirmatively answers at least 3 of the 8 questions below:
-
Have you received a lesser nationally or internationally recognized prize or award for excellence in the field of endeavor?
-
Are you a member of any associations which require outstanding achievements of their members as judged by recognized national or international experts?
-
Is there published material in professional or major trade publications or major media about you which relates to your work in the field?
-
Have you participated on a panel or individually as a judge of the work of others in the same or in an allied field of specialization?
-
Have you made original scientific, scholarly or business-related contributions of major significance?
-
Have you authored scholarly articles in professional journals or other major media?
-
Have you been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation?
-
Have you or will you command a high salary or other remuneration for your services?
The Immigration and Nationality Act (INA) establishes the types of visas available for travel to the United States and what conditions must be met before an applicant can be issued a particular type of visa. The situations which make a visa applicant ineligible for a visa, called visa ineligibilities, are found in the INA, and other immigration laws. The INA also contains provisions for certain ineligible applicants to apply for waivers of their ineligibility.
When a visa applicant applies for a visa, a consular officer at a U.S. embassy or consulate outside the United States determines whether the applicant is qualified, under all applicable U.S. laws, to receive the particular visa applied for. Applicants found qualified are issued visas after all necessary processing is completed. However, when the consular officer determines that the applicant is ineligible to receive a visa, the visa application is denied. The applicant is informed verbally and in writing of the reason for denial based on the applicable section(s) of law.
WAIVERS
Deportation Defense, EOIR, BIA and 9th Circuit
Removal defence involves representing and advocating for immigrants/undocumented immigrants facing deportation from the United States. For many individuals facing deportation/removal from the United States, the process involves appearing before an immigration judge in immigration court. Removal defence gives the individual the right to file for any available relief and obtain a decision from the immigration judge.