Expanded DACA

Soon young adults who were brought to the United States as children will be eligible to apply for removal relief and employment authorization under the expanded Deferred Action for Childhood Arrivals or DACA program. The expanded DACA was part of President Obama's directives announced by him in late November 2014. The expanded DACA will allow more undocumented immigrants who came or were brought to the United States as children to be protected from deportation and to be able to work lawfully and obtain a Social Security card. To be eligible for the expanded version of DACA the applicant must have come to the United States before the age of 16; they must have been physically present in the United States since before January 1, 2010; they must have been continuously present in the United States from January 1, 2010 until the time of filing an application for DACA; they must be currently enrolled in high school or have graduated from high school or have completed a GED program; they must not have been convicted of a felony, a significant misdemeanor or 3 serious misdemeanors; and they must be at least 15 years old at the time of filing the application. There is no upper age limit to apply for DACA so even individuals who are in the forties can apply, as long as they meet the above criteria. Only people who meet the above guidelines should apply, as a denial of the application could trigger enforcement action. The new program will give the applicant employment permission and protection from removal for 3 years, after which the applicant can seek an extension. With approval of employment authorization, the applicant will be able to apply for a Social Security card and begin lawful employment, as well as apply for a Driver's License in Illinois. The United States Citizenship and Immigration Service will begin accepting applications for expanded DACA on February 18, 2015 so now is the best time to gather the necessary documents to prove eligibility. Those documents include proof of physical presence from January 1, 2010 until the time of filing and it is advisable to have at least one document for every three-month period, a birth certificate, copy of passport, school records, and passport photos. If you need more information, give us a call – we offer free DACA consultations via phone, Skype or in person.


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Provisional Waiver of Unlawful Presence Goes Into Effect March 4, 2013


The United States Citizenship and Immigration Service announced this week that it will begin accepting applications for provisional waivers on March 4, 2013. This new procedure will allow certain applicants who are immediate relatives of US citizens, such as spouses and certain children, to apply for a waiver of their unlawful presence prior to departing the United States to attend their immigrant visa interview at a consulate in their home country. The waiver will be decided while the applicant is in the US and only when the waiver is approved will the applicant need to travel to his or her home country to attend the visa interview. The current procedure requires the applicant to wait outside the US while the waiver is adjudicated, which can take several months or more, so the new process will greatly reduce the stress and heartache of separation. It is important to remember that only unlawful presence in the US can be waived (forgiven) with the provisional waiver and applicants who have other bars to reentry, such as criminal convictions or previous immigration violations, will not be able to use the new waiver procedure to forgive those, and will instead need to apply via the current route of waiting outside the US for a decision. In order to apply for the provisional waiver, applicants must have an immigrant petition approved on their behalf, and they must have consular process with the Department of State initiated but no interview yet scheduled. Also, those applicants who are in removal/deportation proceedings will need to petition the court to get the proceedings administratively closed before they can seek the waiver. In order to win on the waiver application, the applicant must show that his or her US citizen spouse or parent in certain situations, would suffer “extreme hardship” if the family member were deported from the United States. Factors considered for extreme hardship include severe level of separation, economic hardship, medical conditions which are exacerbated by separation and which may have no treatment in other country, family and community ties in the US. It is important to note that only hardship to the US citizen is considered and not hardship to the foreign applicant. The aid of a qualified social worker or psychologist to document hardship is often very helpful and provides additional credibility. The provisional waiver, in and of itself, does not grant any immigration status and must be carefully considered prior to applying. As always, seeking advice from a qualified immigration attorney is crucial.


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75,000 Deferred Action Applications Received So Far

Last week USCIS releases the number of applications that have been filed under the new program initiated by President Obama called Deferred Action for Childhood Arrivals. An estimated 75,000 applications have been filed which is lower than the expected 250,000 applications. First approvals have also been issued. One of the reasons noted for the lower-than-expected number of applications is the difficulty in gathering adequate evidence to meet all of the criteria, particularly evidence of physical presence in the United States for the children who were brought to the US without inspection. Often, those children did not have much evidence of when they entered and after they graduated high school, they frequently took jobs where they were paid cash without a paper trail. To be eligible for the program, applicants must demonstrate continuous physical presence in the US from June 15, 2007 to present. Applicants are encouraged to look to churches, libraries, community organizations, health clubs, doctors, and any other evidence available to prove continuous presence. They can also submit affidavits from people who saw them living in the US for the requisite period of time. Currently, the USCIS estimates that it will take between 4 and 6 months to make a decision on the application. All people applying are encouraged to make sure their application is complete and contains all required evidence as there is no appeal available to those whose application is denied. Help from a qualified lawyer practicing immigration law is always a good idea and many attorneys are taking cases on a sliding scale depending in financial need or even for free in situations where the applicant cannot afford legal help.

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Why Foreign Nationals Should Contact an Immigration Lawyer When Arrested

Criminal convictions can have particularly harsh consequences for non-citizens. Not only does a foreign national face the same criminal penalties as US citizens, but the conviction also has an impact on the person’s immigration status. To make matters worse, many convictions which are viewed as minor under state criminal laws, such as possession of a pipe or drug paraphernalia (without actual possession of any drugs), have very severe consequences and only one such conviction can form a ground of deportation. Therefore, it is very important to understand the charges that are brought against a foreign national and how those charges can affect the immigration status now or in the future. A person’s defense counsel should always be informed that a person is a non-citizen and if the attorney is not trained in immigration law, it is always recommended that an immigration attorney is consulted. Frequently, it is possible to negotiate a plea bargain with the prosecutor where the new charges do not carry harsh immigration consequences. But because few prosecutors are experts in immigration law, it is also helpful to provide the appropriate statutes and case law to the prosecutor to help her or him understand the additional punitive consequences that a non-citizen suffers by being convicted. By providing these additional resources to a prosecutor who often has a tremendous case load and very little time to do her or his own research, we can help the prosecutor in looking at all angles of the case and often we can arrive at a compromise solution that works best for the foreign national. In exchange for a different charge that carries no Immigration consequences, we can suggest a longer sentence or maybe even a weekend in jail. The tougher sentence will please the prosecutor while the foreign national is spared from the additional and frequently much harsher punishment from the immigration system. The bottom line, then, is to always seek advice from an immigration lawyer when faced with criminal changes against a foreign national and to do it as soon as possible.

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Deferred Action for Childhood Arrivals

Today the USCIS unveiled the new forms that must be completed by eligible individuals seeking deferred action. As promised in its June 15th memorandum, starting tomorrow qualified applicants will be able to apply for deferred action and employment authorization. Deferred action is not an immigration status but an acknowledgment from the USCIS that an individual is a low priority risk and presently USCIS has no interest in commencing removal proceedings against that person. As such, it does afford a certain level of protection and peace of mind for those who are granted the privilege. The accompanying employment authorization permits unrestricted lawful employment in all states. So who will benefit from this new change in policy? Simply put, the people who came to the United States as children and who completed high school and have kept out of trouble with the law.

The criteria for eligibility are as follows:
* applicant must have come to the US before his or her 16th birthday
* applicant must currently be in school, must have completed high school, obtained a GED or be a veteran of the armed forces
* applicant must have been continuously present in the US since June 15, 2007
* applicant must have been physically present in the US on June 15, 2012
* applicant must be at least 15 years old
* applicant must be born after June 15, 1981
* applicant must not have been convicted of any significant misdemeanor, three minor misdemeanors or any type of felony

Those individuals who meet the above criteria will be able to mail their applications along with supporting evidence, photos and filing fees to the appropriate USCIS lock box facility, depending on their state of current residence. As always, the grant of deferred action is a discretionary matter and applicants must prove eligibility and warrant favorable discretion. Advice of qualified immigration counsel is always a good idea, especially in new matters where the policy is being tested.

Once deferred action and employment authorization are approved, the individual will be able lo obtain a social security card and then a state-issued driver’s license.

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New Procedures for Unlawful Presence Waiver

Last month the USCIS announced a change in procedure regarding processing of unlawful presence waivers. Under the current procedure, people who entered the United States without inspection, meaning they worked across the border without presenting proper entry documentation such as visa, were ineligible to apply for permanent residence or a waiver until they left the United States. Of course, once they left and their waiver application was denied and they appealed, they were already separated from their family for months or even years. This rule applied to spouses of US citizens as well. Needless to say such a rule was very harsh on the marriage, especially if there were children involved and the foreign national was the only breadwinner in the family. Often, the undocumented entry happened years ago, sometimes even when the foreign national was a child, but the consequences were the same. Last month , USCIS decided to accept stateside processing of the waiver, which means the procedure of applying for the waiver changed but the requirements to meet eligibility are the same. The new change allows the family to file an application for a waiver of the unlawful presence from within the United States. If the waiver is approved, then the foreign national still needs to travel to his or her home country to obtain an immigrant visa at a US consulate. However, the time spent waiting for approval of the waiver, which often takes several months or even years, is spent together by the family without being separated and without additional unnecessary separation. It is a much more humane approach, giving credence to the statements that the USCIS values family unity. Please keep in mind that the standard to obtain a waiver remains the same. A US citizen spouse must still demonstrate that he or she will suffer “extreme hardship” if the foreign national is deported from the US. This is a very high standard to meet and by no means can it be considered a given in every situation just because a marriage exists. Separation alone and financial hardship alone is insufficient. There must be a showing of more in order to meet the “extreme” test. Often, even families with children and long term marriages are not able to prove extreme hardship in the case of deportation of the foreign national. Nevertheless, for those who have strong meritorious cases, the new procedure lessens their financial burden and eases their suffering by allowing the family to be together while the waiver is adjudicated. Last Wednesday, the USCIS announced that the new rule is not yet in place and that in several months it will publish it allowing comments on it before it ones final.

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Fiancé Visa

Nowadays many people meet on the Internet on the various social sites and they often live in different states and maybe even different countries. After they meet face to face and fall in love, the issue arises of how to bring the foreign national national to the United States as fast as possible. If they get engaged and plan to marry soon, one available option to them is the fiancee visa. That type of visa allows the foreign national to enter the Unites States for the specific purpose of marrying the US citizen fiancee within 90 days of entry. The process of applying for a fiancé visa begins with the US citizen filing a petition from within the Unites States asking the US Citizenship and Immigration Service to validate the relationship. In order to do this, the US citizen must demonstrate that he os she has a bona fide real relationship with his foreign born fiancé and that they have physically met during the last two years. The usual evidence presented are copies of e-mails, phone calls logs, pictures, and traditional letters and cards. Copies of plane tickets evidencing travel of the US citizen to the foreign country to visit his fiancé are also very helpful. Once the Immigration Service approves the fiancé petition, the file is transferred to the National Visa Center, which then requires the filing of additional forms and application such as the affidavit of support to establish that the US citizen has sufficient income to support his fiancé and future wife. Tax returns, pay stubs, and possibly bank statements mat be necessary to prove this. The foreign national must also submit evidence that she had not been convicted of any serious crimes, and that she has no prior immigration violations. She must also have a special medical exam done to ensure she has no communicable diseases or other issues, such as addictions, that would render her inadmissible. After the NVC completes processing of the fiancé application it forwards the complete file to the appropriate consulate where an interview is scheduled for the foreign national. The consul reviews all of the evidence presented and makes a final determination whether a visa should be issued. After a fiancee visa is issued, the foreign national travels to the United States where she obtains an entry stamp at the border and is admitted for a period of 90 days. During that time, she must marry her American fiancé. Once the marriage takes place, the couple files more paperwork to apply for an adjustment of status (green card) for the foreign national. If the marriage does not take place, the foreign national must depart the United States. She cannot change her visa category to any other visa category and she cannot apply for a green card based on any other petition, whether employment or family based even if she marries another US citizen. If the original relationship falls apart and marriage never takes place but the foreign national does meet another US citizen it is very important to quickly consult and immigration lawyer to understand the available options and not violate the law in a way which would make future sponsorships difficult or impossible. To summarize the fiancé visa petition is usually a faster option of bringing a girlfriend or boyfriend whom we plan to marry soon to the Unites States than an immigrant visa. Because there are very specific rules that must be followed and every situation is different, it is always best to seek competent legal advice before proceeding with a fiancé visa.

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Green Card through Job Offer – Overview

Obtaining Lawful Permanent Residence through Employment Sponsorship


Obtaining a Labor Certification from the Department of Labor (DOL) is the first step of the Employment Based Permanent Residence sponsorship process. DOL regulations govern this step of the process, which is generally referred to as PERM. The PERM regulations require that prior to submitting the Labor Certification Application the employer must fulfill specific requirements in order to show that there indeed is a position opening which the employer sponsor is unable to fill with U.S. workers. The employer sponsor must show that employing the alien will not detrimentally affect the job market, and that no qualified U.S. worker applicants are available. This entails drafting an acceptable job description, obtaining the prevailing wage from the Department of Labor, completing a recruitment process, reviewing applicant resumes, and performing applicant interviews, if needed. The entire recruitment process must take place within 180 days prior to submitting the Labor Certification Application. All recruitment efforts must be completed 30 days prior to the actual date of submitting the Labor Certification Application. This means that the recruitment process really needs to be completed within 150 days of the date on which the first recruitment effort began.

Job Description

The job description of the position the alien is sponsored for must be acceptable to the DOL. The DOL uses an occupation information database called O*NET as the standard by which sponsored positions are measured. To be acceptable, the position must conform to or resemble an occupation listed in O*NET. Several aspects are taken into consideration when determining the proper job description, including the required education, the required years of experience, and specific duties.

Prevailing Wage

Once an acceptable job description has been agreed upon, the next step is to obtain wage determination (PWD) from the federal Department of Labor via an on-line portal. The PWD establishes the minimum wage the employer will have to pay the alien once the alien obtains permanent resident status, often referred to as the “green card.”

Recruitment Process

The types of recruitment required under PERM regulations depend on the type of position for which the alien is sponsored. The basic recruitment process for positions consists of posting a job order with the state workforce agency where the position is available, placing newspaper advertisements, and posting a notice on the job site. If the sponsored position is considered a professional position, then three additional recruitment efforts are required. The PERM regulations provide a list of options from which to choose from for these additional recruitment efforts. The position is considered professional if it requires a bachelor’s degree or a more advanced degree, as adjudicated by the Department of Labor.

The recruitment process also entails reviewing any applicants who respond to the advertisements. Each applicant must be reviewed to determine whether the application qualifies or may qualify for the position. If an applicant appears to qualify, then the employer must contact the applicant for an interview to determine whether the applicant truly qualifies and is actually interested. These interviews an be conducted over the telephone. All applicants, if determined not to qualify, must be disqualified for lawful reasons. These reasons include not meeting the minimum requirements for the positions, unavailability, disinterest, poor or unverifiable references, etc.

Employer Petition Process with the Immigration Service

Once the Department of Labor certifies the application, the next step for the employer sponsor is the submit an Immigrant Petition on behalf of the prospective employee. The petition is filed with the Citizenship and Immigration Service. Along with the petition, the employer sponsor must submit copies of most recent federal income tax returns of the company to demonstrate it’s ability to pay the prevailing wage for the position. The employer sponsor must show that it has enough net income or net current assets to pay the future wage offered to the prospective employee. The tax returns remain confidential and are not released to the sponsored employee.

Application for Permanent Residence

After the Immigration Service approves the immigrant petition of the employer sponsor, the prospective employee submits an application for permanent residence and permission to work. This is the actual so-called application for a green card. At this stage, most of the documents are completed by the prospective employee and the employer sponsor has a very limited role. This is the final stage in the sponsorship process, and once, completed successfully, the sponsored employee obtains his green card and he becomes a lawful permanent resident of the United States and is able to commence employment in the field for which he or she was sponsored.

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H-1B Status in a Nutshell

Congress created a special visa category for people temporarily working in the United States. This type of status allows for full time or part time employment at an American company within the parameters of a specialty occupation. In order to qualify, a foreign national must have completed the equivalent of a US bachelor’s degree or have a combination of work experience and college in a field that is considered by the USCIS to be a “specialty occupation.” Specialty occupations are generally those that require theoretical or practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty is the minimum for entry into the occupation in the US. What this means is that the position for which the foreign national is being sponsored must be specialized enough to require at least a bachelor’s degree. Therefore, only certain occupations will qualify for the H-1B visa and those are typically found in the ‘professional’ occupations but can also be found outside of the traditional professions. Often occupations that do not easily fit into a professional mold or that are more complex at the particular employer than the usual industry standard must be rigorously justified to require a bachelor’s degree and usually the size and type of the employer will play a role in the analysis. Once an occupation is determined to be a specialty occupation, the US employer must seek a prevailing wage from the department of labor to determine how much the foreign national must be paid. Later a labor condition application is submitted to the department of labor to ensure that no US workers are being displaced by the sponsorship and that employer will follow all applicable labor and wage laws as they relate to the foreign national. After that stage in the process, the USCIS gets to look at the entire H-1B petition with all previously approved documents from the department of labor and all supporting documents from the US employer as well as the foreign national. And at this stage the petition is analyzed to determine if the occupation is a specialty occupation and if the foreign national meets the minimum educational requirements for the occupation. Also at this stage, the foreign national must be found eligible for the immigration benefit sought, so prior immigration status approvals are reviewed, any status violations are sought out, and other ineligibility criteria are determined. If all passes muster, then the foreign national is approved for H-1B status or visa, depending on whether he or she is present in the US or outside, and he may begin employment with the company that petitioned for him or her. H-1B status can be approved for up to three (3) years with one extension for the same time period. However, additional one-year extensions may be granted after that if the foreign national is applying for a green card through a US employer.

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Permanent Resident Mom Giving Birth Abroad

What happens when a pregnant woman who is a Legal Permanent Resident in the United States travels to a foreign country, say on a vacation to Mexico, and gives birth to her child there? What is the immigration status of the child? Is the child a US green card holder like the mom or does the mom have to file a relative petition for her child and wait several years until it becomes current? Are there any special exceptions for this type of situation, and if there are, what is the procedure to bring the child to the United States so he can live with his parents? These are all good questions especially given the fact that normally lawful permanent resident parents must file a relative petition for their children to bring them to the United States. Normally, the visa category for see types of petitions is backlogged because here aren’t enough green cards to go around and the children must wait several years (between two and five) to receive a green card. So this type of procedure would cause great hardship for the family who would all of a sudden be separated and forced to quickly find ways to live in a new country while the petition awaited its turn in line. Therefore, thankfully Congress envisioned the difficulties that would befall a family in this type of situation and it create da special provision for children born abroad to lawful green card holders. In this case the child is automatically a Legal Permanent Resident provided the mom brings the child to the United States prior to the child’s second birthday. If the child enters the US before he or she turns two years old, he will be a lawful green card holder. If for some reason mom misses the boat and does not bring the child to the US prior to the child turning two, then the child is not a permanent resident and the mom must file a petition for the child and wait several years for the petition to become current. If the mom brings her child with her to the United States during the two year period then all she needs to obtain prior to entry is a transportation letter from e US Consulate in the foreign country indicating that the child can enter. The letter will be sufficient proof at the border and no actual green card is needed. After the child enters the United States, the mom can apply to have a green card issued to the child and that is a much simpler and quicker process. In offer to issue the transportation letter, the US Consulate will need the child’s birth certificate and the mom’s green card and any other pertinent documentation. So, moms don’t worry! Even when circumstances force you to give birth abroad, your children are protected by this provision and they are Legal Permanent Residents just like you, as long as you bring them back to the US within two years.

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