United States citizens and permanent residents can petition to the Immigration Service to have certain relatives immigrate to the United States.
The process begins by filing a family petition to the Immigration Service. The petition must be submitted with documentation such as birth or marriage certificate showing a family relationship.
The steps that follow will be determined by the presence of the beneficiary in the United States or in another country, and upon the degree of family relationship.
Adjustment of Status
Adjustment of status is the process where a foreign national obtains permanent residency in the United States.
The first requirement is that the foreign national must have been admitted, inspected, or paroled into the United States. This means that the foreign national was authorized to enter into the United States and that it has been already determined that he/she is not inadmissible. Thus, there is really no need for the foreign national to go back to his/her country for an interview at the United States consulate or embassy for a determination of his/her admissibility into the United States.
The second requirement is having a petition approved by a family member or an employer.
There may be times a foreign national authorization to stay in the United States has expired. In these cases, only petitions made by an immediate family member would be allowed to proceed to adjust status.
Adjustment of Status through Section 245 (i) of the Immigration and Nationality Act
There is an exception to the requirement of legal entry into the United States for the foreign national to be able to adjust status as a permanent resident. This exception refers to a person who is present in the United States since at least December of 2000. He/she would be allowed to adjust status if this person was petitioned through a family member or an employer through a labor certification that was submitted to the Immigration Service or to the Department of Labor before April 30, 2001.
With the payment of a $1000 fine, the applicant can obtain permanent residency.
A particular feature of this process is that the foreign national does not necessarily have to adjust their status using the original family or employer petition, but he/she may be petitioned again by another family member or employer.
The consular process is when permanent residence is obtained in the country of the beneficiary of the petition.
Once the family petition is approved, the Immigration Service sends the file to the National Visa Center (NVC). The NVC collects the immigrant visa, the affidavit of support with their fees and the civil documents. Once everything is in order, the NVC will schedule an appointment at the United States consulate. Before the appointment the applicant must pass a medical examination and must be fingerprinted for a verification of any criminal record.
At the end of the interview, the officer will retain the applicant’s passport for the preparation of the visa. The passport will have to be collected at a chosen distribution point and the applicant will have six months to make use of this visa.
Permanent residence card will be mailed to the chosen address in the United States.
In certain occasions an applicant for residence might be subject to a category of inadmissibility either because he/she has remained in the United States unauthorized and have accrued unlawful presence, or because he/she has committed a crime, or committed fraud to obtain an immigration benefit, or because he/she has assisted a family member to enter into the United States in a non-authorized manner. There are many categories of inadmissibility in the immigration law.
Being considered inadmissible means a denial of entry into the United States.
The good news is that some categories of inadmissibility can be waived if certain conditions are present. First, the applicant who is considered inadmissible must a have a qualifying relative. Qualifying relatives are a spouse or parent who is a United States citizen or permanent resident. Second, qualifying relative will suffer an extreme hardship if the waiver is not granted.
Only citizens of the United States, not permanent residents, are allowed to petition to the Immigration Service for a fiancé or fiancée visa for the purpose of the celebration of a wedding. Marriage must take place within a period of no more than 90 days after the fiancé or fiancée is admitted into the United States with this visa. As an additional requirement, the petitioner must show that the relationship or courtship has lasted longer than two years immediately before making the application for this visa.
After the wedding, the foreign national spouse can apply for his/her residence through the process called adjustment of status.
Elimination of Conditionality on the Residence
In cases where a marriage took place within two years, the applicant for residency will be granted a conditional residency for two years instead of permanent residency. The reason for this is to avoid immigration fraud by sham marriages for the purpose of evading the immigration law.
To eliminate the conditionality of the residence, both spouses must file a joint petition showing that they are still married. The conditionality will be eliminated and a permanent residence will be granted.
If within two years the petitioner spouse has died the applicant would still be allowed to obtain permanent residency. If the couple has divorced or separated, the applicant will be given the possibility of eliminating the conditionality of the residence if he/she can prove that the marriage was entered in good faith despite being separated or divorced. The applicant also may remove the conditionality of his or her residency by showing that his/her departure from the United States will result in extreme hardship or that during marriage he/she was subject of extreme cruelty by the other spouse.
Special Juvenile Immigrant Status (SIJS)
Note: Special juvenile immigrant status is governed by state law and is conferred by state judges in Family, Probate, or Juvenile courts.
Special juvenile immigrant status is conferred on minor immigrants who have been victims of abandonment, abuse, or neglect by one or both parents. Only judges who have jurisdiction with legal matters involving minors are authorized to grant such status.
This process is very complicated and has to do with custody, or guardianship of a minor.
Once this special status is granted, the minor can self-petition to the Immigration Service for a permanent residence.
Once the minor obtains permanent residence and later citizenship, he/she will not be allowed to petition for his/her parents when reaching the age of majority.
Acquisition of Citizenship
Children born outside the United States territory can acquire citizenship if one or both parents are citizens of the United States. The requirements vary according to the year the applicant was born.
If both parents are citizens of the United States, he acquires citizenship if at least one parent has resided in the United States.
If one parent is a citizen of the United States and the other is a United States national, he acquires citizenship if the parent with the United States citizenship has resided in the United States for at least one year.
If one parent is a United States citizen and the other is not, the applicant acquires citizenship if the parent with United States citizenship has resided in the United States for at least five years and at least two of those years were after the age of 14.
If the applicant was born before June 12, 2017, and he/she is a child of a United States citizen mother and an unknown father, he/she acquires citizenship if the mother has resided in the United States for at least one year before birth.
If the child was born after June 12, 2017, and the mother is a United States citizen and the father is unknown, the applicant acquires citizenship if before birth, the mother has resided in the United States for at least five years and at least two of those years were after the age of 14.
The citizenship certificate is granted once the N-600 application is approved and the applicant is sworn in.
Younger child may acquire the United States citizenship if one of his/her parents becomes a United States citizen through naturalization. This parent must have custody of the minor before the minor turns 18, and the minor is a permanent resident of the United States.
The Constitution of the United States offers due process protection to all persons present in the United States territory. This protection extends to the immigration courts in removal proceedings. This means that the person who the government intends to remove has the right to dispute it before a neutral an unbiased judge with all due process guarantees.
Removal proceedings starts with the issuance of a Notice to Appear (NTA) by the United States Department of Homeland Security (DHS) through which the respondent is notified of the date and place that he/she has to appear at the Immigration Court, This NTA must contain also the factual allegations and legal charges against the respondent. DHS must clearly and convincingly prove that the person is removable, meaning the respondent is not legally allowed to remain in the United States and must depart. The respondent must appear at the hearings or a removal order would be issued in absentia, (in absence).
At the first hearing the respondent would have to plea to the factual allegations and must deny or accept the legal charges. At this first hearing the respondent can introduce any relief available against removal.
According to the particular circumstances of each case, they might be:
Political Asylum, Withholding of Deportation, and Withholding of Deportation Through the Convention Against Torture. These three defenses bare many similarities and are generally presented in tandem.
The application for asylum must be filed within one year of applicant’s arrival to the United States. Unless the conditions in the country of origin have changed, this is called changed circumstances. Another exception is what is called extraordinary circumstances, and they refer to a particular situation that precluded the applicant to file the application within one year of entry into the United States.
The applicant must prove he/she is unable or unwilling to return to the country of origin because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership to a particular social group, or political opinion.
If the applicant persuasively establishes that he/she was subject of persecution by government agents or groups that the government cannot, or is unable to control; it will be inferred that he/she will be subject of persecution in the future and asylum will be granted. Unless the government shows there are changed circumstances in the country of origin or that the applicant can avoid persecution by relocating to a different area in the country and that this relocation is reasonable. On the other hand, if the applicant was not persecuted in the past, he can establish that he/she has a well-founded fear of future persecution.
The applicant, and his/her spouse and children will obtain permanent residence one year after being granted asylum status through the submission of application I-485.
People with serious crimes, or who have participated in the persecution of others are not eligible for this relief.
Withholding of Removal
As the name implies, this defense is obtained when an Immigration Judge issues a removal order but this order is withheld.
For this reason this relief does not confer permanent residency and does not allow re-entry into the United States after a trip abroad since by travelling abroad, a person would self-remove and execute the order. It allows however, working in the United States with a work permit that is renewable every year at no cost.
A difference with asylum is that the withholding of removal does not require that the application be made within a period of one year after entering the country.
Like asylum, the applicant must prove that his life or freedom is being threatened for his/her political opinion, or religion, race, nationality, or for being a member of a particular social group.
An asylum seeker only has to show a well-founded fear of persecution if he/she returns to the country of origin. To put into perspective, the applicant for asylum must at least show around 10% of possible persecution; while an applicant for withholding of removal must show a possibility that his/her life and or freedom is likely to be in danger at about 50% of occurrence.
Like political asylum, people with serious crimes with a sentence of more than five years are not eligible for this relief.
Withholding of Removal Under the Convention Against Torture (CAT)
The United States is signatory of the United Nations Convention Against Torture, which offers protection to people who may be tortured in their country.
Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such a purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or within the consent or acquiesce of a public official or other person acting in an official capacity.
Torture does not have to be based on one of the five protected groups: race, nationality, religion, political opinion, or membership into a particular social group.
Like withholding of removal but unlike political asylum, withholding of removal under CAT does not grant permanent residency, it only offers authorization to live and work in the United States.
Cancellation of Removal for Permanent Residents
Removal proceedings against permanent residents can be initiated under several grounds, usually the commission of a crime that might be considered an aggravated felony or a crime involving moral turpitude under the immigration law. In the case of the later, the crime was must be committed within five years of admission.
The commission of fraud or voting in a public election would also trigger the Department of Homeland Security the commencement of removal proceedings.
Cancellation of removal for residents is a relief available to permanent residents when several requirements are present, these are:
– Respondent has been admitted as a permanent resident for a period of not less than five years.
– Respondent has resided in the United States continuously for seven years after being admitted into the United States under any status.
– Respondent has not been convicted of an aggravated felony under the immigration law.
This relief can only be used once; thus, in a new removal proceeding it won’t be available.
Cancellation of Removal for Non-Residents
This relief from removal is reserved for exceptional cases to people in removal proceedings who:
– Have more than 10 years of continuous presence in the United States.
– During these 10 years he/she has maintained a good moral character.
– Hasn’t been sentenced for certain crimes considered aggravated felony or involving moral turpitude.
– Finally, removal will result in exceptional, extreme, and unusual hardship to qualifying immediate family members. Those are parents, spouse, children who are United States citizens or permanent residents.
This last requirement makes it very difficult to obtain this relief since the level of hardship to immediate family members must be considered beyond extremely high. This defense is reserved to families with members with serious physical or mental conditions or a combination distressing medical and financial circumstances.
Permanent Residence Through the Violence Against Women Act (VAWA)
The purpose of VAWA was to protect spouses who are victims of physical or mental abuse who are forced to remain in an abusive marital relationship only for the purpose of not losing a possibility of obtaining permanent residence through the abusive spouse.
This option also extends to children of abusive parents and parents of abusive children.
In order to obtain permanent residence through this process, three requirements must be established; the victim has suffered physical or mental abuse; the existence of a valid marital relationship; and the abusive spouse is a United States citizen or permanent resident.
Physical abuse as a result of an altercation of domestic violence can easily be proven through a police arrest report, criminal prosecution, photos of injuries, or the testimony of any witness of the abuse. On the other hand, mental abuse is more difficult to prove since it usually occurs in the privacy of the home without any witness. The Immigration Service acknowledges this scenario and a detailed declaration will be sufficient to show mental abuse.
The existence of a marital relationship must also be proven, so a marriage certificate is not sufficient. The applicant must prove at a minimum that the couple has resided together.
Finally, the abusive spouse must be a United States citizen or permanent resident and this can be proven with a copy of a birth certificate, a naturalization certificate, a United States passport, or a residence card. The Immigration Service acknowledges that it may be scenarios where the victim does not have access to these documents.
Some categories of inadmissibility to receive permanent residence such as having a high probability of receiving public assistance or having entered or remained into the United States without authorization will not apply.
U Nonimmigrant Visa
The U visa was created with the objective of encourage the victims of some crimes who are in the United States without authorization to report to law enforcement authorities the commission of a crime without any reservation of being deported.
Thus, the first requirement for this visa is to have suffered significant mental or physical harm as a result of being a victim of a certain crime. The list of crimes are generally crimes against the person among which we can find murder, assault, rape, sexual abuse, sexual exploitation, torture, human trafficking, incest, domestic violence, or abduction.
Another requirement is that the victim has information related to the commission of the crime, that the victim has assisted, will assist, or could assist the authorities to investigate or prosecute the suspect of the crime. In other words, the victim must be willing to help the authorities prosecute the suspect either through identification or by giving a statement in a trial. It is not sufficient to just report a crime in the scenario where the authorities have identified a suspect and need the victim’s testimony to prosecute him.
This visa eliminates many categories of inadmissibility that are generally an obstacle to other immigration procedures. For example, even if a victim has been ordered removed from the United States and remained present in the country, this would not be an impediment to obtain a U visa. However, an applicant who have been criminally prosecuted and sentenced for a qualified crime listed on the U visa would be denied this visa.
Immediate relatives of the victim such as parents, spouses, or children can also obtain this visa.
The process starts by submitting a request for certification to the police agency that dealt with the matter, or the city or district attorney’s office or the judge who presided over the criminal proceeding. This certification acknowledges that the applicant was the victim of a qualified crime; that has assisted a law enforcement agency or the prosecutor in the investigation of a qualified crime.
The certification is filed together with the U visa petition.
Only 10,000 visas are granted annually thus, there is a backlog of approximately three years.
The U visa is granted for three years. At the end of the three years the applicant can proceed to apply for permanent residence.
Nonimmigrant Visa T
This visa was established for the protection of victims of human trafficking.
Like the U visa, a requirement of the T visa is that if the victim is over 18, he/she must assist in the investigation or prosecution of suspects of this crime. A certification is the first step that is required to obtain this visa.
Like the U visa, this visa eliminates many categories of inadmissibility. And the applicant can also request permanent residency after three years under T visa status.
The number of family members who can benefit from this visa will depend on the age of the victim. If the victim is under 18, parents, and siblings can obtain T visa status. If the victim is over 18, parents, spouse, and children can obtain this visa.
Currently 5,000 visas are granted annually.
Nonimmigrant Visa S
This visa is available to people who have valuable information concerning a criminal organization and who are willing to give such information to federal or state law enforcement agencies. Therefore the presence of this person in the United States is essential for the investigation and prosecution. The physical integrity of the applicant must be in danger as a result of providing such information to criminal investigation agencies.
Only 200 visas are given under this program and, like U and T visas, immediate family members such as parents, spouse, and children of the informant can also obtain this visa.
Temporary Protection Status (TPS)
Temporary protection status is offered to nationals of countries that have suffered natural disasters with great human losses, or have suffered humanitarian crisis due to armed conflicts. Through this program, nationals of these countries who are present in the United States at the time the disaster are allowed to remain in the United States and will not be deported for as long as the program is in effect. Currently the countries that have been granted temporary protection are: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen.
Therefore the requirements to obtain this program are: To be a national of the country that has been designated this protection; to be continuously present in the United States before the date the country has been designated; registration by applying to this program within the designated period.
TPS expires when the designation of the country is terminated. This program does not grant permanent residence but that does not prevent from being a beneficiary of a family petition for residence or applying for a nonimmigrant visa. Only persons with temporary TPS status living in the area of the ninth and sixth circuit of appeals are allowed to apply for permanent residence in the United States through adjustment of status with an approved family petition. Those who live in the area of other circuits must obtain permanent residency through the consular process.
A conviction of a felony or two misdemeanors will make the person not eligible to be protected under this program. Also, having participated in the persecution of others will disqualify a candidate for this program.
Being a member of the program does not allow re-entry into the United States in case of a trip abroad. Therefore, a parole must be requested from the Immigration Service to re-enter the United States. Usually this parole is granted for humanitarian reasons such as the death or illness of a close relative.
Deferred Action for Minors (DACA)
This temporary immigration status is currently litigated in the Supreme Court for the acceptance of new applications to the program. People who have obtained this immigration status will continue to have it.
Through deferred action, children under 16 who entered into the United States before 2007 are given protection.
Another requirement is that the applicant must be less than 31 years old by 2012, and finally the applicant must prove that he or she graduated from high school or is in the process of graduating.
This program has been suspended by the administration of President Trump although those who were approved may continue under this program. This program allows its members to remain in the country and renewing the membership every year. However, members of this program would not be allowed to re-enter into the United States after a trip abroad.
People who have been convicted of a felony, or a significant misdemeanor, such as driving while intoxicated, domestic violence, or sentenced for more than three misdemeanors would be denied into the program.
Non-immigrant visas allow entry into the United States for a specific time for a specific purpose. There are many non-immigrant visas, below are some of the visas that the Fernandez Law Office can assist you with.
F-1 Student Visa
The student visa is very popular since American universities and colleges are the best in the world. The F-1 visa offers foreign students the possibility of obtaining quality studies and also offers the possibility of gaining experience while being socially and culturally immersed in the United States. This undoubtedly develops and prepares them for adulthood not only professionally but also socially.
In order for this visa to be approved, the following requirements are necessary.
As with almost all non-immigrant visas, the applicant must demonstrate that he has no intention of abandoning his/her residence in the country of origin. That is, that the student comes to the United States temporarily to study full time and return to the country of origin when the studies has been finished.
The applicant must be enrolled in an academic educational program of a high school or university that is approved by the Immigration and Customs Service Immigration and Exchange Students (ICE) program.
The student must demonstrate a command of the English language, unless the student comes to study English.
The student must demonstrate that he/she has the financial means to cover the stay in the United States.
Students will not be allowed to work outside the campus. Only after the first year of study, they will be allowed to work outside the campus in jobs related to their training.
J-1 Exchange Visa
This visa is created for students, academics, teachers, professors, specialists, or researchers who come to the United States to participate in an exchange program established by the United States Department of State with the aim of teaching, seminars, conferences, research, and receive training.
The first step to obtain the J-1 visa is for the program-sponsoring agency to request a certification of suitability for the exchange program through the DS-2019 form. Once the certification is obtained, the visa is requested from the consulate.
Exchange Visa Through Au Pairs Program
This exchange visa is commonly known as the nanny visa whereby young students are allowed to live with American families who need nanny services. Combining childcare services with post secondary studies. The foreign national will provide childcare services for no less than 45 hours a week and no less than six hours of study per semester.
The EduCare program allows nanny service hours to be no less than 30 and study hours no less than 12 hours.
H-1B Work Visa
This visa allows specialists in an occupation or university graduates to work in the United States when a sponsoring company demonstrates through the approval of a working condition that there are no available workers in the geographical area who can occupy the job. It is essential that the salary earned be in the same range for the given geographical area. Only 65,000 visas are granted annually and an additional 20,000 visas for graduates of higher education schools in the United States. Due to the limited number this visa run out very quickly.
Visa O-1 For Extraordinary Skills
This visa is granted to foreign nationals with extraordinary abilities in the field of arts, sciences, education, business, or sports. Extraordinary abilities refer to a distinction, a prominence, and a very high level of professional achievements in the field in question.
Extensive documentation is necessary to demonstrate extraordinary ability, although significant recognitions or awards such as a Nobel, Oscar, Emmy, Grammy, Pulitzer, an Olympic medal will be sufficient.
For the vast majority of applicants in the field of arts who have not been awarded such prizes they will have to demonstrate the extraordinary level of achievement through at least three of the following: Documentation of a significant role in a distinguished production, good reviews in specialized publications, lead a distinguished and reputable organization; accumulation of commercial successes or very good reviews; significant recognition of critics, organizations, government agencies, or subject matter experts; that has received or receives a significant monetary compensation.
For the field of science, education, business, or sports, at least three of the following aspects will be necessary: having received a national or international award of great relevance; be a member of an organization of importance that requires obtaining significant achievements to obtain a membership; materials about the applicant in major publications; have participated as a critic of the work of other colleagues; works or essays of great significance in the field of study; authorship of a scientific work; have been employed in an important role in an organization of great relevance and reputation; has received or receives a significant monetary compensation.
The O visa is granted for three years and renewable indefinitely every year.
The O visa is highly coveted since it gives the possibility of applying for permanent residence at three years as long as the reputation and distinction remain at a high level.
P-1 Visa For Athletes
Internationally recognized athletes may seek temporary entry into the United States to participate in sports competitions or promotional events.
The applicant must include in the petition for this visa a contract with a team from a sports league and evidence of participation in past seasons, international participation as a member of the national sports team, significant participation in school and university sports events, written statements of experts in the United States, the individual or collective ranking, a prize or medal in a significant sporting event of national or international relevance.
P-2 For Group Artists
Artists who are an integral part of a group with international recognition for a considerable period of time and who are seeking entry into the United States to participate in artistic events.
Applicants must demonstrate 75% of their members have maintained a relationship with the group for more than one year. It must be shown at least three of the following: awards of international significance, critics reviews in publications, leading role in performances or presentations of significant importance, the group has received or receives a significant monetary compensation.
L-1 Visa For Executives or Managers
This visa is used when there is a company that wants to move an executive or manager to the United States from a foreign affiliate. It is also used when a company abroad wants to open a subsidiary in the United States so the executive or manager will be responsible for the establishment and operation of said subsidiary.
As a requirement, the executive or manager must have been employed in the company or subsidiary for at least one year of the last three. Another requirement is that the executive or manager will be employed in the same role where a high degree of specialization and training will be necessary.
E-1 Visa For Treaty Traders
Under this visa a foreign national and certain family members are allowed to live in the United States to conduct substantial trade between the United States and foreign national’s country of origin. The first requirement for this visa is the existence of a treaty of commerce between the United States and the applicant’s country of origin. The trade must be classified as substantial which means a continuous flow of sizable international trade where at least 50% is made between the United States and the applicant’s country of origin. The visa is granted for a period of two years with indefinite extensions of two years.
E-2 Visa For Treaty Investor
The first requirement for this visa is the existence of a treaty of commerce between the United States and the applicant’s country of origin. An applicant under this visa will be allowed to enter the United States solely to develop and direct the investment enterprise.
The investment must be substantial for the company to perform successfully. It is crucial that the investment be considered at risk to buy a company or to establish a new one. Like the E-1 visa, the E-2 visa is granted for a period of two years with indefinite extensions of two years.
The United States grants 140,000 immigrant visas for people who according to their abilities wish to settle in the country. The category under which a foreign national could immigrate to the United States will be determined by the ability, education, or experience. There are five employment-based categories. Only the second and third categories require a labor certification from the United States Department of Labor.
The categories are:
First: Workers with extraordinary ability in the arts, sciences, education, business or athletics. Also for outstanding professors, researchers, executives, or managers of a multinational companies.
Second: Workers holding an advance degree or master’s degrees or people with extraordinary skills or abilities in the arts, sciences, education, business.
Third: Professional workers or specialized skilled workers.
Fourth: Applicants cataloged as special immigrants which include Special Juvenile Immigrant Status (SIJS) and religious workers.
Fifth: Investor of at least 1.8 million dollars in a new company with at least ten full-time employees. For geographical areas with a high unemployment, the investment can be 900 thousand dollars.
For the first three categories the sponsor employer file an I-140 employment petition to the Immigration Service. In the fourth category, a self-petition I-360 form is used, and in the fifth category, a self-petition I-526 form is used.
If the employee is in the United States with authorization then in accordance with their category, they may submit their application for permanent residence together with the employment petition or they will have to wait for the immigrant visa to become available.
If the applicant is abroad, they will have to carry out the process for permanent residence through the consular process by having an interview at the consulate of the country of origin.
EB-1 First Category
This category is reserved for people with extraordinary skills in art, science, education, business, or sports. For this category it is not necessary to present a labor certification. Only the application for permanent residence is made individually by people with extraordinary abilities or through the sponsor in the positions for outstanding professors, executives or managers of a multinational company.
For people with extraordinary abilities, the presentation of a significant prize such as Oscar, Grammy, Emmy, Tony, Pulitzer, or an Olympic medal will be sufficient for permanent residence to be granted. In the other cases, the applicant must present at least three of the following aspects: Have received nationally or internationally recognized prizes or awards; membership in associations that require a high level of achievement; published materials about the applicant in publications of the field in question; a participation or request for participation in a jury panel that judges the work of other people in the field in question; significant contributions in the field in question; authorship of articles in important publications of the field in question; that the work has been exposed or exhibited to the public in large samples; have played a transcendental or very important role in organizations of the field in question; has received or receives a very high monetary compensation; have collaborated significantly in a production that has had an important commercial acceptance.
In the case of outstanding professors, the employer must include with the petition for permanent residence, evidence of at least three of the first eight aspects listed above.
Labor certification is only used in the second and third category.
This is the first step to follow so that an employer can file a petition with the Immigration Service to bring an employee to work in the United States.
Through the labor certification, the employer shows the United States Department of Labor that a process for hiring an employee was carried out in the geographical area where the position is open. Also, that during the hiring process no candidates were available or did not meet the desired qualifications for the position.
It is strictly forbidden for the employer to offer a salary below the market rate for an equal or similar position in the area.
Once the Department of Labor is convinced that the employer cannot hire a United States worker, it will approve the labor certification.
EB-2 Second Category
This category is reserved for applicants holding an advance degree or people with extraordinary skills or abilities in the arts, sciences, education, or business.
After obtaining the labor certification, the employer may submit the employment application to the Immigration Service through the form I-140. Along with the petition the employer must include evidence showing academic records such as degrees, diplomas from a university or a center of higher education; letters attesting to at least ten years of experience; certification to practice the profession in question; evidence of significant monetary compensation; membership in one or several professional associations; recognition by professional organizations or government entities for the applicant’s contributions to the field in question.
EB-3 Third Category
This category is reserved for specialized workers with a minimum of two years of experience in the employment in question or for worker whose work requires a higher education degree.
After obtaining the labor certification, the sponsor may submit the employment application to the Immigration Service through the form I-140, along with evidence that the worker has at least two years of experience or in the case of professionals, a degree from a university or a center of higher education.
EB-4 Fourth Category
This category is reserved for applicants considered special immigrants, among which we can find minors who hold a Special Juvenile immigrant Status (SIJS), religious workers, workers of international organizations such as the North Atlantic Organization (NATO), workers from the United States abroad, Iraqi and Afghan translators.
The applicant may submit to the Immigration Service a self-petition form I-360, basically a petition to immigrate to the United States under the fourth category.
EB-5 Fifth Category
This category is reserved for investors who had invested at least 1.8 million dollars in a company that creates or preserves at least ten full-time permanent positions. For geographical areas with a high unemployment, the investment can be 900,000 dollars.
The investor will proceed to submit a petition to the Immigration Service.
If the investor prefers not to be personally involved in the investment process, this may be carried out by Regional Centers that have been designated by the Immigration Service.
One could say with confidence that in modern history there hasn’t been a country that has welcomed and assimilated so many immigrants. The United States is literally a country of immigrants. Obtaining citizenship through naturalization is the final stage in this assimilation path. The United Sates citizenship offers political participation through voting in public elections or running as a candidate for a public position. It provides the opportunity to participate in the judicial process as a member of a jury. It gives the possibility of obtaining certain jobs reserved only for United States citizens such as a public school teacher, federal government employee, or a police officer. As a citizen, certain family members can be petitioned to reside permanently in the country. A United States citizen can live outside the country for as long as he/she deems appropriate. A United States citizen is protected from deportation because of the commission of a crime.
The following requirements are necessary for a naturalization process.
- Being over 18 years.
- Be a permanent resident for at least five years, except if the permanent residence was obtained through marriage and this marriage is still in place; or if residency was obtained through the Violence Against Women Act (VAWA). In these cases it will only be necessary to have three years as a permanent resident.
- Have lived in the United States in the aggregate for at least half of the five or three years of permanent residence.
- Be domiciled for at least three months in the state were the application is made.
- Not having lived continuously outside the country for a period greater than one year. Unless the applicant has been mobilized abroad for being a member of a US military group, or has obtained a special permit to work abroad, or be a spouse or child of an employee of the United States government abroad.
- Maintained a good moral character for five or three years immediately before filing the application. Good moral character is an ambiguous definition in the immigration law. Generally, the commission of a certain crime, commission of fraud, offer false testimony, or non payment of child support may go against a determination of whether the applicant has a good moral character during the five years immediately before filing the application.
- The applicant must be attached to the principles of the United States Constitution.
- The applicant must demonstrate elementary level of reading, writing, and understanding of the English language. Also the applicant must demonstrate knowledge and understanding of the fundamentals of the history and government of the United States.
- The naturalization process ends with the taking of an oath of alliance to the United States.