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Fiancées & Spouses
Aliens of Extraordinary Ability
Artists and Athletes
Entrepreneurs & Traders
Visas for Cruising Sailors
Temporary Protected Status (TPS)
Permanent Residence Through Family Members
Permanent Residence Through Employment
Permanent Residence Through Investment
National Interest Waivers
Removal of Conditions of Residence
Adjustment of Status
Child Status Protection Act
U.S. Naturalization (Citizenship)
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06/15/2012: DHS Announces Deferred Action for DREAMERS. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization. USCIS will begin accepting applications in approximately 60 days. For more information, contact Bakker DeLaCruz. En Español.
06/11/2012: FY 2012 H1B cap reached. USCIS continues to accept petitions exempted from the cap and DOD cooperative research worker H-1B petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2013.
06/01/2012: Public Comment Period Ends for Proposed Rule to Create a Provisional Unlawful Presence Waiver Process. USCIS to Review Comments and Reminds Public that Rule is Not Yet in Effect.
05/22/2012: USCIS Launches Online Immigration System, USCIS ELIS. Agency begins transition from paper-based to online environment.
08/30/2011: Certain parents subjected to battery or extreme cruelty by U.S. citizen sons or daughters have ability to self-petition. Automatic eligibility for employment authorization upon approval of petition. More.
Attention employers: As of February 20, 2011, USCIS will require that all employers filing Form I-129 petitions seeking employment of H-1B, H-1B1, L-1 and O-1A workers certify that they have reviewed Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR) to ascertain whether or not an export control license is required for the employment. More here and here.
1/31/2011: USCIS to begin using commercial information service to verify petitioner information. The Validation Instrument for Business Enterprises (VIBE) Program will be used by USCIS Officers to access electronic records on entities filing Forms I-129, I-140 and I-360, nonimmigrant and immigrant petitions for foreign workers. More here.
K-1 Fiancé(e)s / K-3 Alien Spouses
U.S. Citizens may bring their fiancé(e)s to the U.S. to marry. The marriage must take place within 30 days after the fiancé(e) enters the U.S. After the marriage occurs, they may then apply to adjust to immigrant status. The couple must have had a personal meeting within the past two years.
Spouses of U.S. citizens may also obtain nonimmigrant status while they wait for the immigrant petition to be processed. The spouse may apply for a work permit to engage in employment during the wait. The spouse may also travel abroad. The visa must be applied for and issued in the country where the marriage took place.
H-1B Temporary Workers in Specialty Occupations
Persons in certain specialty occupations are eligible to work in the United States under an H-1B visa, which is valid for three years and may be extended for up to six years. Under certain circumstances, H1-B status may be extended beyond the six years. A “specialty occupation” requires “theoretical and practical application of a body of highly specialized knowledge.” In order to qualify, an employer must show that proposed employment qualifies as a specialty occupation. The proposed employee must be required to have at least a bachelor’s degree / equivalent degree / equivalent experience. The employer must also be able to show an ability to pay the worker’s wages. Employers should keep in mind that the worker may be ineligible if he or she has been arrested, refused entry into the U.S., lied to get a visa, violated U.S. immigration law, or involved with illegal drugs, among other things. Before the employer’s petition will be approved, the employer must also complete a Labor Condition Application (LCA). LCAs must disclose the wage offered, the prevailing wage (based on the best information available) and how the employer determined the prevailing wage. In addition, employers must attest to various wage and condition-related facts, such as that they are offering the proposed employee the prevailing wage, that the foreign employee’s working conditions will not adversely affect the working conditions of other workers, and that the employer has given its employees notice of the filing of the LCA, among other things. Bakker DeLaCruz can work with you to ensure that you have all of this groundwork done in time for the five-day filing period that occurs at the beginning of every April. A maximum of 65,000 H-1Bs were available for 2009 (150,000 petitions were filed during the filing period). An additional 20,000 H-1Bs are available for foreign workers holding a master’s degree or higher from a U.S. university. Employers who employ nationals of Chile and Singapore have H-1B1s available to them and are therefore much more likely to be successful. See H-1B1, below. An interesting feature of the H-1B status is that it permits "dual intent." "Dual intent" implies that the worker may choose to return to their home country or may choose to move into permanent residency (immigrant) status in the U.S. Therefore, the employee will not need to show that they intend to return home after their H-1B status expires.
H2-A Agricultural Workers
Employers that wish to hire foreign nationals as temporary agricultural workers may apply for H-2As for the prospective employee. The temporary and seasonal agricultural workers may enter the United States for a period of up to one year. Extensions of H-2A visa may be granted for a total of three years. The employer must show that it has a temporary need for the type of services or labor to be performed by the aliens, and that workers are not available in the United States. The alien must have a foreign residence that he or she has no intention of abandoning. Workers not from a country on the list of eligible countries may be approved on a case-by-case basis. Eligible countries as of the time this was written were Argentina; Australia; Belize; Brazil; Bulgaria; Canada; Chile; Costa Rica; Dominican Republic; El Salvador; Guatemala; Honduras; Indonesia; Israel; Jamaica; Japan; Mexico; Moldova; New Zealand; Peru; Philippines; Poland; Romania; South Africa; South Korea; Turkey; Ukraine; United Kingdom.
Under new rules, an approved temporary labor certification must be filed in connection with all H-2A petitions. The H2A certification is valid for up to 364 days. Dependents (spouses and unmarried children under 21 years of age) of H-2A workers are entitled to H-4 status, but may not work in that nonimmigrant status.
H2-B Temporary non-agricultural workers needed to meet peak load need
Employers can petition for temporary workers to meet peak load needs. The worker will be initially admitted for up to a year, and may renew their status for up to a total stay of three years. Under new rules, an approved temporary labor certification must now be filed in connection with all H-2B petitions. In addition, petitioning employers must specify only the number of positions sought and not name the individual aliens except where an intended alien beneficiary is already present in the United States; or where an alien is from a country not eligible for participation in the H-2B program. The employer must also show that the alien met the minimum job requirements stated in the certification at the time of filing of application. The worker must be coming to perform temporary service or labor. However, the definition of “temporary services or labor” has been recently amended to allow US employers and eligible foreign workers the maximum flexibility to complete projects that could be for a specific one-time need of up to 3 years without demonstrating extraordinary circumstances.
Businesses may bring foreign persons to the U.S. to take part in training programs. However, the H-3 visa may not be used for graduate education or training. The employer must explain why the training is required, whether similar training is available in the alien’s country, how the training will benefit the alien in pursuing a career abroad, and why the petitioner will incur the cost of the training without significant productive labor. The alien must show that they intend to return to their home country after the training period.
L-1 Intracompany Transferees
Multinational companies or those with affiliates abroad may bring certain employees to work in the U.S. L-1A managers or executives may be admitted for seven years. Specialized knowledge workers may be admitted for five years. The employee must have been employed for the employer abroad for one continuous year (or six months under certain circumstances) within the last three years in an executive, managerial or specialized knowledge capacity. Specialized knowledge is special knowledge of the employer’s product or its application in international markets or an advanced level of the knowledge of the employer’s processes and procedures. The proposed U.S. employment must also be in an executive, managerial or specialized knowledge capacity. The employer must show evidence of the qualifying relationship between the U.S. and foreign employer, based on ownership and control, such as articles of incorporation, financial statements or stock certificates. There are additional requirements if the alien is coming to the U.S. to open a new office. The employee does not need to show intent to return to their home country at the expiration of their L-1 status.
O-1 Extraordinary Ability in arts, science, education, business, athletics
Foreign nationals of extraordinary ability may be admitted to the U.S. for an initial period of up to three years. Extensions in increments of one year are possible. This visa category is reserved for the small percentage of those who have risen to the top of their professions, such as those who have received major international awards, published material, made significant contributions to their field, command a high salary within the field, judged the work of others, among other things. It is more difficult to show extraordinary ability in science and business than for the arts and entertainment. Foreign nationals seeking O-1 status need not show intent to return to their home country at the expiration of their O-1 status, but they may have difficulty if they are married to a U.S. citizen. O-1 spouses and children are not eligible for employment authorization. This is often the best option for a nonimmigrant in the U.S. on a J Exchange Visitor visa who is unable to obtain either a waiver of the two-year residence requirement or an H-1B.
O-2 Alien accompanying O-1 artist or athlete
Assistants and other similar essential personnel may accompany O-1 artists or athletes to the U.S. To be successful a petition must show evidence of the essentiality, and the skills and experience of the O-2 with the O-1.
P-1 Internationally recognized athlete/entertainment group
Individual athletes (not teams) may be initially admitted for up to five years up to total stay of not more than ten years (but P-1s may now file for a new initial period of admission after they have been in the U.S. for a 10-year period). They must show two of the following:
- Substantial participation in a prior season with a major U.S. sports league
- Participation in international competition with a national team
- Substantial participation in a prior season for a U.S. college or university competition
- Written statement from an official of a major U.S. sports league or official that details how the alien is internationally recognized.
- That the individual is ranked, if the sport has international rankings
- That the alien or team has received a significant honor or award in the sport.
Entertainers may be initially admitted for up to one year. They must be either internationally recognized or show at least three of the following:
- Starring or leading in productions or events with a distinguished reputation
- International recognition and acclaim for outstanding achievement in the field
- Record of major commercial or critically acclaimed success
- Significant recognition for achievements from critics, organizations, government agencies or other recognized experts in the field
- Commands high salary or other substantial remuneration for services compared to others
Groups must have been established and performing regularly for at least one year and 75% of the members of the group must have been performing with the group for at least one year. This does not apply to circus groups and a waiver can be requested.
The employer/petitioner should consult with a labor organization with experience in the relevant field of athletics or entertainment and submit an advisory opinion from that organization with the petition. If they do not, the government will forward a copy of the petition to an appropriate labor organization. If no relevant organization exists, the government may decide the petition without the advisory opinion.
P1-S Essential support for P-1
Assistants and other similar essential personnel may accompany P-1As or P-1Bs to the U.S. To be successful a petition must show evidence of the essentiality, and the skills and experience of the O-2 with the O-1. The alien must have had substantial experience performing the critical skills and essential support services for the P.
E-1 Treaty Trader / E-2 Treaty Investor
Traders and investors from certain treaty countries may enter the U.S. for an initial period of two years, with possible extensions in two-year increments. They must show that they carry on substantial trade with or substantial investment in the U.S. Substantial investment is that which will create employment and is not created by the investor simply for the purpose of earning a living. The funds may come from any legal foreign or U.S. source. Borrowed investment funds qualify as long as they are not secured by assets of the target U.S. business.
Employees of treaty traders/investors must have executive or supervisory duties or special qualifications essential to the enterprise in order to qualify for treaty status. For employees of treaty investing companies, the investing company must be majority held or controlled by nationals of the alien's country.
Foreign nationals seeking E1/2 status need not show intent to retain their foreign residence.
R-1 Religious Workers
Religious organizations may bring foreign nationals to the U.S. The religious organization must be non-profit and the foreign and U.S. branches of the organization must belong to the same denomination. The foreign national must have been a member of the denomination for at least two years. A short break in continuity is now allowed if the religious worker was on sabbatical or engaged in further religious training. If the foreign national is a minister, he or she must be authorized to conduct services. If the foreign national is a religious professional, he or she must have a bachelor’s or equivalent and that degree must be required for the profession. If the foreign national is of any other vocation, that alien must be qualified in the religious vocation or occupation. The foreign national must show that they intend to return to their home country after the expiration of their status. Under new rules issued in 2008, the religious worker may be initially admitted for up to 30 months, and may extend their stay for an additional 30 months (5 years total stay).
H-1B1 (Chile/Singapore) and TN (NAFTA) Free Trade Nonimmigrants
Both U.S. and foreign employers may bring temporary workers to the U.S. under the TN visa.
Only U.S. employers may bring in H-1B1 temporary workers. They must be nationals of Singapore or Chile and a Labor Condition Application is required. The foreign national must meet the educational or licensing requirements for the profession. They must also show intent to retain their foreign residence.
Trade-NAFTA (TN) Professional Workers (from Canada or Mexico) can now remain in the United States for three years before seeking readmission or obtaining an extension of stay. Read the Press Release from October 14, 2008 here.
G and A visas
Representatives to international organizations holding G visas and foreign diplomats holding A visas may bring their personal employees, attendants, and domestic workers to the U.S. They must receive a fair wage comparable to that area of employment in the U.S. and must show that the employee will actually perform the employment duties. There must be an employment contract written in both English and the employee’s language that guarantees minimum wage. The contract must also include a statement by the employee promising not to accept other employment while working for the employer, a statement by the employer promising not to withhold the passport of the employee and a statement indicating that the employee cannot be required to remain on the premises after working hours without compensation.
U.S. citizens who ordinarily reside abroad may bring their domestic employees to the U.S. on a B visa if they are traveling to the U.S. temporarily or they are subject to frequent international transfers and will be stationed in the U.S. for less than four years. The employee must still demonstrate that they are not an intending immigrant, but intend to return to their home country after a specific, limited period. The employer-employee relationship must have existed for at least six months prior to the employer’s entry to the U.S. or the employer must regularly employ a domestic employee in the same capacity while abroad. The employee must have at least one year of experience as a personal or domestic employee. There must be a written employment contract (in English) that states that the employer will be the only provider of employment for the employee, provide medical insurance, provide free room and board and round-trip airfare, pay the employee the minimum prevailing wage, pay U.S. taxes and social security, and other protections.
Nonimmigrants may also bring their domestic employees if they have employed the employee outside the United States for at least one year prior to the date of their admission or if the employer-employee relationship existed immediately prior to the time of application. The employer must regularly employ (either year-round or seasonally) domestic help before the time of application, and the employee must have at least one year of experience as a personal or domestic employee. The employer must be the only provider of employment, and must provide the employee free room and board and round trip airfare under the employment contract.
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Visas for Cruising Sailors
Even nationals of countries that fall under the visa waiver program must obtain visas if they will not be entering the U.S. on an air or sea carrier designated as a participant in the visa waiver program. According to the Department of State website, "almost all major airlines and cruise ship companies are currently approved carriers - copies of carrier lists may be requested from the Department of Homeland Security’s National Fines Office at 1525 Wilson Blvd., Arlington, VA. 22209." Therefore, if you are a cruiser aboard a sailing vessel planning to visit the United States, you must obtain a visa prior to entering the country. For more information, contact us.Changing/Extending Status
Often times, nonimmigrants may need to extend their stay in the U.S. or change the purpose of their visit (and therefore nonimmigrant visa category) while they are in the U.S. Bakker DeLaCruz handles these matters for the following nonimmigrant categories:
A-3 Attendants of Diplomats
B1/B2 Visitors for Business or Pleasure
E1/2 International Traders and Investors and their dependents
F Students and their families
G Representatives to International Organizations and their families and employees
H Temporary Workers and their dependents
I Representatives of Foreign Media and their families
J Exchange Visitors and their families
L Intracompany Transferees and their dependents
M Students and their families
O Aliens of Extraordinary Ability and their dependents
P Artists, Athletes or Entertainers and their dependents
R Religious Workers and their dependents
Note that B visa holders can only change status in limited circumstances. If you are a prospective student, you must state so in your B visa application prior to obtaining the visa so that your B visa can be marked “prospective student.”
It is important to keep in mind that you must apply to change or extend your nonimmigrant category before your current status expires (written on your I-94). Nonimmigrants cannot change their status if they have been unlawfully present for more than six months. In addition, they cannot extend their status if they have violated their status absent “extraordinary circumstances” and other conditions. If you fall into this category, contact us so we can assist you in proving your case. In addition, if your application to change or extend your nonimmigrant status has recently been denied, we can represent you in your motion to reconsider your application.
Temporary Protected Status (TPS)
Under the TPS program, nationals from certain countries can temporarily live and work in the U.S. Bakker DeLaCruz can handle your TPS registration if you are from El Salvador, Honduras, Nicaragua, Sudan, Somalia, or Haiti and have continually resided in the United States since:
- El Salvador: February 13, 2001. You must have been continuously present in the U.S. since March 9, 2001.
- Honduras & Nicaragua: December 30, 1998. You must have been continuously present in the U.S. since January 5, 1999.
- Sudan: November 9, 1999
- Somalia: September 16, 1991
NEW! Haiti: January 21, 2010
The window for registering or re-registering for these benefits is limited, so be sure to seek an attorney’s advice before applying.
Waivers of Inadmissibility
If you have previously overstayed your visa or have been otherwise unlawfully present in the United States for more than 180 consecutive days but less than one year, you are inadmissible for three years. If you have been unlawfully present for more than one year (consecutive days), you are inadmissible for ten years. If you were unlawfully present for more than one year and you have attempted to enter without inspection, you are permanently barred from entering the United States. Persons under the age of 18 do not incur unlawful presence. If you are inadmissible and wish to enter the United States as a nonimmigrant, you may be able to obtain a waiver of inadmissibility. Bakker DeLaCruz can assist you. Note that you must still meet the requirements to obtain a nonimmigrant visa.
If you are subject to the 3/10 year bar and wish to enter the U.S. as an immigrant, Bakker DeLaCruz may be able to assist you in obtaining a waiver if you have a qualifying relative (spouse, parent or child) and your family situation meets certain conditions that constitute "extreme hardship" to your qualifying relative.
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U.S. Immigrant Visas
Bakker DeLaCruz can assist businesses that wish to permanently hire foreign workers in the U.S. and individuals who wish to immigrate to the U.S. We handle the following types of immigrant visa matters:
Permanent Residence Through a Family Member
U.S. Citizens may sponsor the following family members for permanent residence:
- Spouse: All prior marriages must have been terminated. They must also show that there is a bona fide marriage. This requires providing evidence of jointly owned property, children born to the marriage, co-habitation, co-mingling of assets or affidavits from others.
- Sons and daughters of all ages, married or unmarried: Note that for step-children to qualify, the marriage must have occurred before the child turned 18.
- Brothers, sisters and parents if the sponsor is at least 21 years old: The petitioner and beneficiary must have at least one common parent to qualify as siblings.
Permanent residents may sponsor the following family members for permanent residence:
- Spouses: As with citizens, all prior marriages must have been terminated. They must also show that there is a bona fide marriage. This requires providing evidence of jointly owned property, children born to the marriage, co-habitation, co-mingling of assets and affidavits from others.
- Unmarried sons or daughters of any age: Again, for step-children to qualify, the marriage must have occurred before the child turned 18.
It is important to note that permanent residents cannot sponsor a spouse if they gained their status based on prior marriage less than five years ago, unless the prior marriage was terminated by the death of the prior spouse. There is an exception if you can show by clear and convincing evidence that you did not enter into your prior marriage to evade immigration laws.
If a marriage is less than two years old when the foreign spouse obtains permanent residence, the permanent resident status will be conditional for two years. The spouses must jointly petition to remove the condition within the 90-day period immediately preceding the end of that two-year period.
All families with children who may reach the age of 21 during the pendency of their case should seek advice regarding the Child Status Protection Act (CSPA). The CSPA protects minor children from losing their eligibility for immigration benefits because they turn 21 years old as a result of processing delays on the part of the U.S. Citizenship and Immigration Services or the Department of State.
Permanent Residence Through Employment
Alien of extraordinary ability in the sciences, arts, education, business or athletics
These foreign nationals may self-sponsor themselves and thus do not require an offer of employment. To be eligible they must have won a major internationally recognized award or meet at least three listed criteria. In addition, they must be coming to the U.S. to continue work in the area of expertise. If they are not self-sponsoring the U.S. employer must show that it has the ability to pay the foreign national’s wages.
Outstanding professor or researcher
An employer must submit a petition for an outstanding professor or researcher. The foreign national must enjoy international recognition and have at least three years of experience of teaching and/or research in the field. If the sponsor is a university, the university must intend to employ the foreign national in a tenured or tenure-track position or in a permanent position as a researcher in the field. If the sponsor is a private employer, the private employer must intend to employ the foreign national in a permanent research position in the academic field. They must also employ at least three full-time researchers and have achieved documented accomplishments in the field. The U.S. employer must show that it has the ability to pay the wages.
Multinational executive or manager
Multinational businesses may transfer their foreign employees to the U.S. on a permanent basis. If the worker is now employed outside the U.S., they must have been employed outside the U.S. for at least one year in the past three years in an executive or managerial capacity by the petitioning employer. If worker is in U.S., they must have been employed for at least one year in the three years preceding admission as a nonimmigrant in an executive or managerial capacity by the petitioning employer. The employer in the U.S. must be the same employer or a subsidiary or affiliate of the firm. The U.S. employer must have been doing business for at least one year. The U.S. employer must show the ability to pay the wages.
Member of the professions with an advanced degree or one with exceptional ability in the sciences, arts or business
To qualify in this immigrant category, the foreign national must have a U.S. advanced degree or the equivalent, a bachelor’s degree and at least five years of post-bachelor’s experience in the specialty, or meet at least three listed criteria showing exceptional ability.
Foreign nationals with advanced degrees or exceptional ability in the sciences, arts or business may self-sponsor by seeking a National Interest Waiver (NIW). They must show that their admission to permanent residence would be in the national interest. NIW applicants will be successful if their entrance would benefit the economy, culture, welfare or educational interests of the U.S.
An employer may also submit a petition for the foreign national, but must first obtain a labor certification, unless the employee qualifies for the exceptional ability waiver. The U.S. employer must show the ability to pay the wages.
Employers seeking to bring skilled workers to the U.S. on a permanent basis must first obtain a labor certification. The foreign worker must meet the educational, training, or experience requirements of the labor certification (the minimum requirement is two years training or experience). The U.S. employer must show ability to pay the wages.
Employers seeking to bring professionals to the U.S. on a permanent basis must first obtain a labor certification. The foreign professional must hold a bachelor’s or equivalent degree, which must be required for entry into the occupation. The U.S. employer must show ability to pay the wages.
Employers seeking to bring unskilled workers to the U.S. on a permanent basis must first obtain a labor certification. The worker must meet any education, training or experience requirements required in the labor certification. The U.S. employer must show ability to pay the wages.
Nurses and physical therapists get special treatment. Contact Bakker DeLaCruz to learn more.
This includes religious ministers, certain long-time employees of the U.S. government (or of certain international organization) employed abroad, some physicians who have resided in the U.S. for a number of years, court dependents, etc.
A word on labor certifications: In seeking a labor certification, employers must establish that there are not sufficient workers who are able, willing, qualified and available at the time and place where the alien is to be employed and that the employment of the alien will not adversely affect wages and working conditions of similarly employed U.S. workers. A labor certification is not necessary if the alien qualifies for a “shortage occupation,” as determined by the Department of Labor, or for an occupation listed in the Department of Labor’s “Schedule A.” However, the position must be posted for ten consecutive days.
Read USCIS's summary on employment-based permanent residence here.
Permanent Residence Through Investment
Foreign investors may obtain permanent residence to establish a new commercial enterprise in the U.S. The foreign investor must engage in a managerial or policy-making capacity. The foreign investor must have or be actively in the process of investing $1 million (or at least $500,000 if in a designated “Targeted Employment Area”). The foreign investor must show that the capital was obtained through lawful means. In addition, the investment must benefit the U.S. economy and create full-time employment for at least 10 persons other than the alien, the alien’s spouse and children, and nonimmigrant aliens—within the next two years. The petition processing time is two years, but it may be possible to obtain advance parole in about 90 days. The permanent resident status is conditional for two years. The investor must petition to remove the condition within the 90 day-period immediately preceding the expiration of the two-year period.
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Spouses who have been abused by their U.S. citizen or permanent resident spouses may self-petition for family-based immigrant status. The abuse must have occurred during the marriage and in the U.S., unless the abusive spouse is an employee of the U.S. government or a member of the armed forces. The abused spouse must have good moral character. The abused spouse must also show that the marriage was entered into in good faith. Parents of children who have been abused by that parent's U.S. citizen or permanent resident spouse may also self-petition. Finally, battered children who have been abused by their U.S. citizen or permanent resident parent may also self-petition.
If the spouse has already obtained conditional permanent resident status, they may also self-petition for removal of the condition.
Removal of Conditions of ResidenceInvestment-based immigrant status is conditional for two years. To remove the condition, the investor must show that he/she created a new commercial enterprise and placed $1 million ($500,000 in certain Targeted Employment Areas) at risk. The investor must have sustained the enterprise and investment in that business throughout the period of conditional residence. The investor will have met these requirements if he/she "substantially met" the investment requirement and continuously maintained the investment during the two-year period. The investor must have hired ten full-time employees or show that they will be hired.
Marriage-based immigrant status is conditional for two years if the marriage is less than two years old at the time the status is granted. The couple must jointly petition to remove the condition and both spouses must appear for the interview. They must show evidence of a bona fide relationship. There are exceptions to the joint filing/interview requirement:
- if it would result in extreme hardship (on either alien or his/her spouse or child)
- entered into marriage in good faith and not at fault in failing to meet requirement
- battered spouses or those subject to “extreme cruelty”
Adjustment of Status
Certain nonimmigrants can adjust to immigrant status while in the U.S. Bakker DeLaCruz handles the following:
Based on immigrant petition or derivative spouse or child
Based on admission as fiancée and subsequent marriage to citizen
Based on continuous residence since before 1972
Birth in the U.S. to a foreign diplomatic officer
Diversity Lottery winners
Some adjustment applicants must undergo a medical examination.
Certain nonimmigrants can apply for employment authorization. Bakker DeLaCruz handles the following:Travel Permission
F-1 Students – F-1 students may only apply for employment authorization under the following circumstances:
- Optional Practical Training Program (OPT)
- Employment under scholarship of qualifying international organization – the proposed employment must be within the scope of the organization’s sponsorship
- Severe economic hardship – only in the case of unforeseen economic circumstances. The student must try to find off-campus employment with an employer who has filed a labor and wage attestation.
B-1 Personal or domestic servant of nonimmigrant employer – the domestic employee must have been employed for at least a year by the employer before the employer entered the U.S. or the employer must regularly employ personal and domestic servants and has done so for a period of years before coming to the U.S. The domestic employee must have at least one year of experience as a personal or domestic servant. They must show that they maintain a residence abroad that they have no intention of abandoning.
B-1 Nonimmigrant domestic servant of U.S. citizen – The U.S. citizen employer must have a permanent home abroad, must be stationed outside the U.S. and is temporarily visiting the U.S. or have a current assignment in the U.S. that will not be longer than four years. The citizen must have employed the alien as a domestic servant abroad for at least six months prior to admission to the U.S.
Spouse of E-1/E-2 treaty trader or investor & Spouse of L-1 Intracompany transferee
K-1 Fiancée or K-2 Dependent
K-3 Nonimmigrant spouse of U.S. Citizen or K-4 Dependent
Adjustment of Status applicants
J-2 Spouses of exchange visitors
Dependents of employees of diplomatic missions (A), international organizations (G) or NATO
Certain foreign nationals may apply for travel documents. Bakker DeLaCruz handles the following:
Re-entry permit for Greencard holders outside of the U.S. for extended periods of time:
A re-entry permit establishes a presumption that you did not abandon your permanent resident status. Applying for a re-entry permit prevents your Permanent Resident Card from becoming technically invalid for re-entry into the United States if you are absent from the U.S. for one year or more. It allows you to apply for admission to the U.S. after traveling abroad for up to two years, without having to obtain a returning resident visa. It may also prevent your U.S. permanent residence from being considered abandoned for absences shorter than one year if you take up residence in another country. The permanent resident must be physically present in the U.S. at the time of filing, but may leave the country after filing.
Advance parole is available for those who have applied to adjust status and wish to travel abroad while the application is pending without abandoning the application. Advanced parole must be applied for and granted prior to leaving the U.S. Certain nonimmigrants who have applied to adjust status do not require advance parole and may re-enter the U.S. on their valid visas. Advance parole may also be used for persons outside the U.S. who cannot get a visa and/or waiver of inadmissibility. They must show that all medical care, transportation, housing and other expenses and subsistence needs will be met. There must be emergent reasons why advance parole should be authorized.
Applicants for U.S. citizenship must be at least 18 years old and have lawful permanent residence for at least five years prior to filing, with no absence from the country of more than one year. In addition, they must have been physically present in the United States for at least 30 months out of the previous five years (absences of more than six months but less than one year disrupts the applicant's continuity of residence unless they can establish that they did not abandon their residence during that period).
However, spouses of U.S. citizens may apply for citizenship if they have been lawful permanent residents for at least three years and the spouse has been a U.S. citizen for the last three years. Applicants must also have good moral character. With some exceptions, applicants must be able to speak, read and write English and have knowledge of U.S. history and government.
Children of applicants for citizenship may also become naturalized under certain circumstances.
The lawfulness of the alien’s initial admission can be called into question if the person eventually applies for naturalization.
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