Areas of Practice

 

Deportation Defense

 

Family and Employment-Based U.S. Immigration Visas

 

Naturalization, Citizenship and Special Immigration Petitions

 

Non-Immigrant U.S. Visas

 

 

 

Deportation and Removal Defense in Immigration Court

A non-citizen of the US can be removed, or deported, from the United States for a variety of reasons. Certain acts such as criminal convictions, instances of immigration fraud, letting your immigration status expire, being caught returning to the United States with a criminal record, or attempting to enter the United States with false documentation or without any documentation at all can all result in a non-citizen being served with a Notice to Appear in Immigration Court (“NTA”).

When a person appears in immigration court before an immigration judge, a record is created that will be used in determining ultimately whether the individual is deportable or allowed to remain in the United States.

It is highly recommended that you appear with an experienced immigration attorney in court, or consult with an immigration lawyer prior to going to court. The consequences of appearing in immigration court alone, unprepared, or even with the wrong lawyer, could be devastating.

The immigration attorneys at Victory Law Immigration, LLP, have successfully defended hundreds of deportation cases in immigration court, often times resulting in lawful residency status for its clients. There is nothing more rewarding than seeing someone go from deportable to becoming a lawful resident of the United States. Not every person charged with deportation is able to win and become a resident, since every case is different and often times the chance of success depends on the criminal and immigration record of the person being charged.

However, an experienced and aggressive deportation defense attorney can advise you or your family on the charges being brought against you and the likelihood of success in court, before ever appearing before an Immigration Judge. We provide a free initial consultation to review the nature of the case and advise on the potential outcomes. If you or someone you love is facing deportation from the United States and has to appear in immigration court, contact one of the experienced deportation defense attorneys at Victory Law Immigration today.

 

Cancellation of Removal for Permanent Residents

A common misconception is that if someone has a green card they cannot be deported. This is not the case. The US government can deport a green card holder, or lawful permanent resident, for a variety of reasons, the most often being some kind of criminal conviction that affects their immigration. Someone who is a lawful permanent may apply for Cancellation of Removal for Permanent Residents before an immigration judge. Cancellation of Removal is a one-time pardon for a lawful permanent resident or green card holder that, if granted, will cancel a deportation but is not available any time in the future if that person gets into trouble again. A lawful permanent resident is eligible for Cancellation of Removal in immigration court if they meet the following requirements:

  •  You have been a lawful permanent resident (green card holder) for atleast 5 years
  • You have resided continuously in the United States for at least 7 years after being admitted to the US in any status
  • You have not been convicted of an aggravated felony and are not inadmissible to the US for any security related reasons

Simply meeting these requirements is not a guarantee that you will be granted Cancellation of Removal for Permanent Residents. You must also convince the immigration judge that your positive factors, or equities, outweigh the negative ones.

Because this is a complicated area of immigration law with great consequences on a person’s ability to lawfully remain in the U.S., it is highly recommended that you appear in court, and consult with prior to appearing in court, an experienced, knowledgeable, aggressive immigration attorney like the ones at Victory Law Immigration.

Cancellation of Removal for Non-Permanent Residents

Cancellation of Removal or deportation from the U.S. is also available to non-permanent residents of the United States, or undocumented individuals who are residing here without lawful permission. This form of Cancellation of Removal is called Cancellation of Removal For Certain Non-Permanent Residents.

A person is eligible for Cancellation of Removal for Certain Non-Permanent Residents if they meet the following criteria:

  • You have been physically present in the United States for a continuous period of ten years prior to the beginning of removal proceedings;
  • You have been a person of good moral character for ten years;
  • You are not inadmissible due to certain criminal, fraud based, or security related grounds;
  • Your removal would result in exceptional and extremely unusual hardship to your United States citizen or lawful permanent resident

Spouse, Parent, or Child (under 21 years of age)

While most people who qualify for Cancellation of Removal for Certain Non-Permanent Residents have little trouble demonstrating the four criteria categories listed above, the case is often decided based on whether the Immigration Judge believes the person has demonstrated the “exceptional and extremely unusual hardship” element. For a finding of “exceptional and extremely unusual hardship”, the Judge will look at:

  •  Your relatives age, health, and length of time residing in the U.S.;
  • Your relatives community ties to the U.S and abroad;
  • Any exceptional medical, psychological, physical, or educational concerns of your United States citizen or LPR relative
  • Any other factor you or your attorney think relevant to the overall hardship they would face if you were deported from the U.S.

There is a limit of 4,000 people who are eligible to be granted Cancellation of Removal for Certain Non-Permanent Residents each year. Before applying for Cancellation of Removal for Certain Non-Permanent Residents in immigration court, consult with an attorney at Victory Law Immigration today.

Asylum

The United States asylum laws are meant to protect individuals coming to this country seeking protection because they have suffered persecution, or have a fear that they will be persecuted, due to: race, religion, nationality, membership in a particular social group, or political opinion. Asylum applications can be categorized in one of two ways: Affirmative Asylum cases, or Defensive Asylum cases. If you are seeking asylum in the United States based upon a well founded fear of persecution due to one of these categories, you may file a Form I-589 Application for Asylum and for Withholding of Removal, within 1 years of arrival to the United States.

You may include your spouse and children who are in the United States on your application at the time you file or at any time until a final decision is rendered in the case. Children must be under 21 and unmarried to be included in the asylum application.

Work authorization:

You may apply for permission to work in the United States (employment authorization) 150 days after filing a complete asylum application (excluding any delays caused by you) AND as long as no final decision has been made on your application. To apply for work authorization pending your asylum case, you must file a Form I-765, Application for Employment Authorization.

Bringing Family to United States:

If granted asylum, you may petition to bring your spouse and children to the United States by filing a Form I-730, Refugee/Asylee Relative Petition. You must petition within two years of being granted Asylum status unless there are any humanitarian reason to excuse the delay.

Obtaining Lawful Permanent Residency after Asylum:

You may file for a green card (lawful permanent residency) one year after being granted asylum. To apply for the green card, file a form I-485, Application to Register Permanent Residence or to Adjust Status. You must submit separate I-485 applications for each family member who received derivative asylum status based on your case.

 

Affirmative Asylum (with USCIS):

To apply for affirmative asylum, a person must be physically present in the U.S. You may apply regardless of how you initially entered the United States. You must apply within the first year of the date of your last entry to the United States, unless you can show:

  • Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing;
  • You filed within a reasonable amount of time given those circumstances.

Note: If you file for affirmative asylum and your case is not approved and you do not otherwise have lawful immigration status, you may be issued a Form I-862 Notice to Appear and your case may be forwarded to an immigration judge at the Executive Office for Immigration Review (EOIR).

The Immigration Judge would then conduct a de novo review of your case and issue an independent decision.

Defensive Asylum (with EOIR):

A Defensive application for asylum occurs when a person requests asylum as a defense against deportation from the United States. A person may only apply for defensive asylum if they are already in removal (or deportation) proceedings before an Immigration Judge in the Executive Office of Immigration Review (EOIR). Generally, a person is placed into defensive asylum proceedings in one of three ways:

  • They are referred to an Immigration Judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or
  • They are placed in removal proceedings because they were detained in the United States for some reason, and found to be without proper legal documentation or immigration status, OR
  • they were caught by US Customs and Border Protection trying to enter the United States without proper documentation and placed in expedited removal proceedings and determined by an Asylum Officer to have a credible fear of persecution or torture if they were to return to their home country.

An Immigration Judge will hear a defensive asylum claim in Immigration Court in the EOIR. The Immigration Judge will determine first whether the person is eligible for asylum, and ultimately, whether or not to grant the claim for asylum. If asylum is denied, the Immigration Judge will analyze whether the person is eligible for any other form of relief from deportation, and if not, the individual could be subject to removal from the United States. If ordered removed or deported, a person has the right to appeal the Judge’s decision to the Board of Immigration Appeals.

Below is a chart provided by USCIS highlighting the key differences between “Affirmative” and “Defensive” Asylum Processes:

key differences.PNG

 

 

Because the United States’ Asylum laws are complex and not always uniformly applied by Immigration Judges and officers of USCIS, it is best to consult with a qualified immigration lawyer before applying for asylum, or presenting an asylum claim in court.

For more information about affirmative and defensive asylum and how these applications are processed and decided, please consult an Immigration Attorney at Victory Law Immigration today.

Bond Representation for Detained Individuals and Families

Every year, the United States detains tens of thousands of non-citizens forin some form of immigration detention center. Many of these people are held at insanely high Immigration Bond amounts that their families simply cannot afford. Even worse, some are held for months or even years without bonds while their case makes its way through the complex, muddy waters of the U.S. immigration courts and appeals courts. Many of these people are immigrants, intending immigrants, or lawful permanent residents who have not committed any crimes, or who have committed a minor infraction with serious immigration consequences. Sometimes these people are detained months or even years after the fact. And worse, there is no right to public counsel as there is for those who cannot afford legal representation in the criminal justice system.

There is no way around it, Immigration detention is a serious, expensive, life-changing process that affects not only immigrants but their families and loved ones as well. Therefore, we highly recommend you hire competent, qualified, aggressive legal representation before appearing in immigration court to fight for your freedom or the release of your loved one from immigration custody.

Our experienced immigration attorneys at Victory Law Immigration have years of experience advocating for detained clients in some of the most difficult settings and circumstances imaginable. We have successfully secured the release of hundreds of clients from immigration custody and returned them to their eager and joyful families. We believe your liberty is the most important thing in life, and we take your case as seriously as if it were our own. We represent clients detained in Immigration Detention centers all across California and Arizona.

We are available 24 hours a day, 7 days a week for a free consultation regarding you or your loved one’s immigration case. Contact us at Victory Law Immigration today.

Motions to Reopen

Often times, and for a variety of reasons, a person is removed from the United States, or deported, by an Immigration Judge. One remedy for this would be to file a Motion to Reopen the matter. A motion to reopen is not available to deported individuals in all cases, but generally is available if filed within the appropriate time and when the argument has a valid basis in s successful motion to reopen results in the Immigration Judge who ordered the deportation re-opening the matter to conduct another review of the case based on additional considerations or evidence.

Generally speaking, a Motion to Reopen must be filed within 90 days or three months of the final order of deportation from the Immigration Judge, however there are some exceptions.

Motion to Reopen and Rescind an In Absentia Order of Deportation

An individual in removal proceedings is expected and required to attend each court hearing, and if they do not, the Immigration Judge can deport them through issuing an in absentia order. A motion to reopen proceedings following such an in absentia order is available so long as the motion is based on lack of notice or exceptional circumstances.

A lack of notice based motion to reopen may be filed at any time, since the argument is that the individual was not properly notified of his or her responsibility to attend the immigration court date.

An exceptional circumstance motion to reopen is due 180 days after the date that the in absentia order was issued, and the motion must detail or layout the reasons that the person missed the hearing. If the Immigration Judge is convinced that the facts satisfy the requirements of exceptional circumstances, the motion will be granted and the person who was supposed to be deported will now have an opportunity to show in immigration court.

Motion to Reopen Based on Ineffective Assistance of Counsel

Attorneys aren’t perfect, no one is. But a lawyers actions should not have adversely affected a client’s immigration outcome. If you or your family believes that the case was negatively affected because of your immigration attorney, then you may be able to reopen the case by filing an Ineffective Assistance of Counsel motion to reopen. The deadline for this motion is either 90 or 180 days and it starts once it has been discovered that the attorney’s actions were ineffective.

If you or your family believes that your previous immigration lawyer may have adversely or negatively affected the outcome of your immigration case, contact an attorney at Victory Law Immigration today for a free consultation, we can discuss the process of filing a motion to reopen based on ineffective assistance of counsel and help determine if there are grounds to file or not, as well as what to expect if the matter is reopened.

Call us today at 310-612- 1581 to discuss your individual case and determine whether a motion to reopen is the right choice.

Board of Immigration (BIA) Case Appeals

The Immigration Lawyers at Victory Law Immigration LLP are qualified to handle any matter on appeal before the Board of Immigration Appeals, or the BIA.

The BIA is located in Falls Church, Virginia. The BIA is the appeals branch of the Executive Office of Immigration Review that reviews decisions issued by lower courts and sometimes by USCIS officers. In some instances, BIA decisions may be in turn appealed to U.S. Court of Appeals. The BIA will review a decision rendered by the lower court or agency, and in some cases affirm the decision, or in other cases, reverse the decision or remand the case back to the Judge who issued it for further review.

Often times an individual disagrees with the decision rendered by the Immigration Judge in his or her case. If they wish to appeal the decision, they must file written notice along proper paperwork and fees in order for the BIA to process an appeal of the Judge or Officer’s decision. Often times, with the BIA appeal is pending, the individual is afforded the right to continue to work or remain in the United States. Because a BIA appeal has such important consequences on an individual’s immigration case, we recommend you consult at qualified immigration lawyer before deciding whether to file an appeal or represent yourself. Contact an Immigration Attorney at Victory Law Group for a free consultation regarding your BIA immigration case appeal today.

 

Family Petitions and Adjustment of Status

Certain individuals are able to receive their Green Cards, or lawful permanent residency status, by adjusting their status through family members who are already lawful permanent residents or citizens of the United States.

You may be eligible for a green card through the family petition process if you are:

  • an immediate relative of a U.S. citizen (including spouses, unmarried children under the age of 21, and parents of U.S. citizen petitioners 21 or older;
  • a family member of a U.S. citizen who falls into a preference category (including unmarried sons or daughters over the age of 21, children of any age, and brothers and sisters of U.S. citizen petitioners 21 years or older;
  • family members of a green card holder, lawful permanent resident, (including spouses and unmarried children of the sponsoring green card holder);
  • members of a special category such as battered spouse or child, a K nonimmigrant fiancé, a V nonimmigrant, a person born to a foreign diplomat in the United States, or a widow of a U.S. citizen

The process for applying for a green card depends on which of the eligibility categories the applicant falls under, and is usually involves the filing of an I-130 petition for Alien Relative along with the filing of an I-485 Application to Register Permanent Residence or Adjust Status. One can obtain a green card from within the United States through United States Citizenship and Immigration Services, or from outside of the United States through the Department of State by a process known as Consular Processing.

For more information on how to obtain your lawful permanent residency through petition by a US citizen or resident family member, please contact one of the experienced immigration attorneys at Victory Law Immigration, LLP.

K1/K2 Fiancée Visas

A K-1 Nonimmigrant Visa, or Fiancée Visa, is available for United States citizens who wish to apply for permission for their intended foreign national spouse to enter the United States prior to the actual marriage.

The requirements for a K-1 Visa are as follows:

  • That the Petitioner is a U.S. Citizen
  • That the Petitioner intends to marry the foreign national fiancee within 90 days of him/her entering the United States
  • That both parties are free to marry and any previous marriage has been legally terminated (by divorce, death, or annulment)
  • That the Petitioner and the Fiancee met each other in person at least once within the two years prior to filing the petition. However there are two exceptions to this rule, both of which require a waiver:
    • If the requirement to meet in person violates strict and long established customs of either party’s foreign culture or social practice, or
    • If you prove that the requirement to have met in person would result in extreme hardship to the petitioner.

Once the K-1 Visa is issued, the Fiancee has permission to enter the United States, and the marriage to the petitioner must take place within 90 days. The Fiancée is entitled to work authorization after entering the United States through the filing of an I-765. After the marriage, the US Citizen Spouse may file for a Green Card, or lawful permanent residency, for the foreign-born spouse.

K-2 Non-Immigrant Visa (for Dependents)

If the foreign-born Fiancée has children who are under 21 and unmarried at the time of filing, they may be eligible for a K-2 Visa to accompany their parent to the United States.

Consular Processing

A person who is the beneficiary of an approved immigrant petition and has an immigrant visa immediately available to them is eligible to apply for consular processing at a U.S. Department of State consulate office abroad, in order to receive an immigrant visa to be admitted to the United States and become a lawful permanent resident. This process or pathway to the green card from abroad is known as “consular processing.”

Steps for Consular Processing

The first step in consular processing is to determine if you fit into a specific immigrant category. Most immigrants become eligible for a green card (permanent residence) through a petition filed on your behalf by a family member or employer. Others become permanent residents through first obtaining refugee or asylum status, or through a number of other special provisions.

When the category of eligibility is determined, then a person will need to have an immigrant petition filed on their behalf.

Family Based

Family based categories require that a U.S. citizen or permanent resident relative file a Form I-130 Petition for Alien Relative in order to then consular process.

Employment Based

Employment based categories require an intending U.S. employer to file a Form I-140 Petition for Alien Worker. However, certain foreign entrepreneurs who intend to invest significant amounts of capital into a business venture in the United States may file Form I-526, Immigrant Petition by Alien Entrepreneur on their own behalf.

Special Classes of Immigrants

In some cases, certain immigrants may file a Form I-360, Petition for Amerasian, Widow(er), and Special Immigrant, or in some cases may have one filed on their behalf.

Humanitarian Programs

Most humanitarian programs do not require an underlying petition, although individuals may need to meet additional requirements before they can adjust status.

Although immigrant petitions are filed with USCIS, in some cases, an I-130 petition may be filed for an immediate relative (spouse, child, or parent of a U.S. citizen) with a U.S. embassy or consulate abroad. Situations where this may be applicable include:

  • If the U.S. citizen has been authorized to be continuously residing within the jurisdiction of the consular office for at least the previous 6 months;
  • Members of the military;
  • Emergency situations;
  • Situations involving the health or safety of the petitioner;
  • When in the national interests of the United States

Please check with the consulate before submitting a petition or consult an experienced immigration attorney.

Filing and Waiting for Decision on Petition

USCIS will then notify the petitioner of its decision, if granted, in the form of an approval notice. If the petition is denied, the notice will include the reasons for denying the petition and any rights to appeal the decision. If the petition is approved and if you are the beneficiary of the petition and living outside the United States or living in the United States, but choose to apply for your immigrant visa abroad, USCIS will then send the approved petition to the Department of State’s National Visa Center (NVC), where it will remain until an immigrant visa number is available. S

Notification from National Visa Center

The National Visa Center is responsible for the collection of visa application fees and supporting documents. It will notify the petitioner and beneficiary when the visa petition is received and again when an immigrant visa number is about to become available. The National Visa Center will also notify the petitioner and beneficiary when they must submit immigrant visa processing fees and when and what type of supporting documentation must be submitted.

Scheduling Appointment Abroad

Once a visa is available or a beneficiary’s priority date is current (earlierthan the cut-off date listed in the monthly Visa Bulletin), the Consular Office will schedule the applicant for an interview. The consular office will complete processing of the applicant’s case and decide if the beneficiary is eligible for an immigrant visa.

Returning to the United States After Immigrant Visa is Granted

If a person is granted an immigrant visa, the consular officer will give them a packet of information. This packet is known as a “Visa Packet’. Upon return to the United States, the Visa Packet should be presented to the Customs and Border Protection official at the port of entry. If all goes well and you are found admissible to the United States, you will be admitted as a lawful permanent resident of the United States, which gives the authority to live and work in the United States permanently.

Receiving Your Green Card

The green card will be mailed after the immigrant visa is granted and you return to the United States. If the green card is not received within 45 days of return, call the USCIS National Customer Service Center at 1-800- 375-5283 or visit your local USCIS office by making an InfoPass appointment.

Consular Processing for Non-Immigrant Visas

Consular Processing is also available to those outside of the United States who wish to enter on various types of temporary, or non-immigrant visas.

The Form DS-160, Online NonImmigrant Visa Application, is an electronically submitted application filed with the Department of State for non-immigrant visa applications to be processed by a U.S. consular officer.

Once submitted, along with filing fees and supporting documentation, a Consular Officer will review the information in the DS-160 to process the non-immigrant visa application and determine at a personal interview whether the non-immigrant visa shall be approved.

The DS-160 form is used for all non-immigrant visa categories, including those applying for fiancée or K Visas.

Print and Keep the DS-160 Barcode Page for confirmation, the full application is not needed at the interview.

Schedule a Visa Interview Appointment, this process will vary country by country.

Pay the visa application fee. Country specific instructions are available on the U.S embassy or consulate website for the country in which the person intends to consular process.

Waivers of Inadmissibility (I-601, I-601A, I-212)

Often times, a foreign national who is present in the United States without documentation marries a lawful permanent US resident or a US citizen. Naturally, the US spouse wishes to adjust or “fix” their alien spouse’s status so that they may be considered to be lawfully in the United States, so they can work, file taxes, and reside without fear of deportation.

However, because the foreign national spouse did not come to the United States with permission, they are deemed to be “inadmissible” to the United States. The US Citizenship and Nationality laws mandate that the person file a waiver of inadmissibility before they attain lawful status in the United States.

A United States citizen or lawful permanent resident who is married to an undocumented person may file an I-601 application for Waiver of Grounds of Inadmissibility to waive the “inadmissibility” or unlawful presence penalty.

The undocumented spouse is required to depart the country if they are currently in the United States, or file from abroad if they are currently residing outside of the U.S., and await the decision on their I-601 waiver of inadmissibility before they attain lawful status in the United States.

Along with filing the application, the supporting documentation, and paying the requisite fees, the US citizen spouse or resident spouse must demonstrate “extreme hardship” in order for the waiver to be granted.

Extreme hardship is not a rigid standard, but typically, the US citizen spouse or resident spouse filing the waiver must prove some sort of physical, financial, personal, educational, or economic hardship to a level that is considered extreme by the officer adjudicating the 601 Waiver before it is granted.

Because this is not a clearly defined, rigid standard, it is best to work with an experienced attorney in deciding whether to file an I-601 Waiver of Inadmissibility, whether the person needing the waiver even qualifies in the first place, and what to expect during the process.

The attorneys at Victory Law Immigration can help you and your family decide whether you qualify for the waiver, what factors to highlight when filing the waiver, and what documentary evidence would be help the chances that the waiver is granted.

Furthermore, the attorney will document the extreme hardship in a cover letter, prepare the packet of evidence and relevant paperwork, explain the Immigration laws to the family and apply case law to the officer adjudicating the waiver, while guiding all parties through the process from start to finish.

I-601A Waiver of Unlawful Presence- “Stateside Waiver” Filed in United States

Obviously, the thought of a loved one departing the United States while awaiting the decision on an I-601 Waiver of Inadmissibility is not an ideal situation, especially when dividing a family that depends on one another while one member resides in a far-away place. It is for this reason that USCIS created the I-601A Application for Provisional Unlawful Presence Waiver.

If you are an immediate relative of a United States citizen, you are eligible to apply for the I-601A Provisional Unlawful Presence waiver before having to depart the United States to appear at a U.S Embassy or Consulate in order to apply for an immigrant visa, or “consular process.”

In this instance, an Immediate Relative is the Spouse, Parent, or Child (unmarried and under 21), of a U.S. Citizen who has already paid the Department of State immigrant visa processing fees associated with an approved family petition.

The advantage of the I-601A Application for Provisional Waiver of Unlawful Presence is that instead of departing the United States first and then filing the waiver from abroad, an immediate relative of a United States citizen is able to file their petition from within the United States, drastically cutting down the time they will have to be separated from their families.

The same “extreme hardship” standard of the I-601 Waiver of Unlawful Presence is required to be proven before the I-601A waiver is granted, and if the I-601A waiver is granted the intending immigrant is still required to depart the United States for the immigrant visa interview in the US Embassy or Consulate of their country of birth, but the advantage of filing the I-601A from within the United States and remaining with your family while the case is being decided is well worth it for many families.

The immigration attorneys at Victory Law Immigration have handled hundreds of I-601A waiver cases with great success. While these cases are not guaranteed due to the “extreme hardship” element, the Victory Law immigration attorney will be able to analyze your family’s eligibility for the waiver, and explain the fees, timeframe, and elements required for the waiver to be granted. Contact us today for more information on the I-601A Application for Provisional Unlawful Presence Waiver today.

I-212 Waiver- Application for Permission to Reapply for Admission

If a person has been deported or removed from the United States, the consequence is that they are inadmissible, or not allowed to lawfully return, for a period of 5, 10, 20 years, or at times, for life depending on the circumstances of their deportation.

Sometimes, though, if the person would otherwise be eligible for a visa to the United States, then they can apply for a Form I-212 Waiver, or Application to Re-Apply for Admission into the United States after Deportation or Removal.

Scenarios for Number of Years a Person is Inadmissible:

  • Five-year Bar: This scenario is likely because a person was detained and removed (expedited removal) upon intending to enter the United States. In this case, a person would be subject to inadmissibility and barred to return to the U.S for a period of five years.
  • Ten-year Bar: This scenario mainly occurs when a person entered the U.S and was later placed into removal proceedings before an Immigration Judge, or, if a person came to the U.S. unlawfully, stayed for over a year, and then decided to depart to another country. In either of these instances, the person would be subject to inadmissibly for a period of ten years.
  • Twenty-year Bar: a person who has been deported from the U.S. more than one time is subject to a 20 year bar from the date they were deported.
  • Permanent Bar: If someone was convicted of an aggravated felony they are permanently deemed inadmissible barred from reapplying for lawful status without filing a 212 waiver. If someone aggregated more than one year of unlawful presence in the U.S. and then left, or was ordered removed from the U.S. and then re-entered illegally, they must wait ten years before filing the Form I-212.

If the 212 waiver, or application for permission to reapply for admission is granted, this does not automatically make the applicant a lawful US resident, or grant them any type of lawful status, it only means that they are now eligible to apply for a new visa.

It would be wise to discuss the case circumstances with an experienced immigration attorney at Victory Law Immigration before deciding whether to file an I-212 waiver. Certain criminal convictions or certain scenarios may mean there is little to no probability that the waiver is granted. While some attorneys might gloss over this fact and charge thousands of dollars, our client first approach means we will ethically and honestly analyze your case before taking your money. We will explain the factors that lend towards a grant of the waiver and decide together with your family whether to file the waiver and what to expect along the way.

Employment Based Immigration (Permanent Workers)

Each year, around 140, 000 immigrant (permanent) visas are available for foreign nationals (and their spouses and children) who seek to immigrate based on their job skills.

There are five employment-based immigrant visa preference categories that are listed below, and a chart provided by United States Citizenship and Immigration Services, that lays out the differences between the five categories.

  1. First Preference EB-1
  2. Second Preference EB-2
  3. Third Preference EB-3
  4. Fourth Preference EB-4
  5. Fifth Preference EB-5

Preferences

 

Some preferences require the applicant to already have a job offer from a U.S. employer, who can serve as your sponsor. Before the sponsor can submit your immigration application, or petition, the employer must obtain an approved labor certification from the U.S. Department of Labor (DOL).

The DOL labor certification has to verify that:

  • There are insufficient qualified, available, and willing U.S. workers to fill the position being offered at the prevailing wage and;
  • Hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Employment Based Immigration is a complex area of US Immigration law, and it is often very helpful to consult with an experienced immigration attorney prior to beginning the application process. The Immigration Attorneys at Victory Law Immigration are available to provide more information on employment based immigration to the United States.

 

Naturalization and Citizenship Applications and Certificate of Naturalization

Naturalization is the process by which U.S. citizenship is granted to a foreign citizen or national after they fulfill certain requirements as set out by the Immigration and Nationality Act (INA). To apply for Naturalization one must file a form N-400 Application for Naturalization.

A person qualifies for Citizenship, or Naturalization, if:

  • You have been a permanent resident for 5 years preceding the application and meet all other requirements, or
  • You have been a permanent resident for 3 years or more and meet all requirements to file as a spouse of a U.S. citizen, or
  • You have qualifying service in the U.S. armed forces and meet all other eligibility requirements, or
  • You are a child born outside the U.S. to U.S. citizen parent(s) and meet all other eligibility requirements.

The most common scenario for applicants for Naturalization is when someone has been a green card holder for at least five years prior to filing for naturalization. Under that scenario, a person must:

  • Be 18 or older at the time of filing;
  • Be a green card holder for at least 5 years immediately preceding the filing of the form N-400 Application for Naturalization;
  • Have lived within the state or USCIS district in which you are applying for at least 3 months prior to the date of application;
  • Have continuous residence in the United States as a green card holder at least 5 years immediately preceding the date of filing the application;
  • Be physically present in the US for at least 30 months out of the 5 years immediately preceding the date of the filing application;
  • Reside in the US continuously from the date of filing until the time of naturalization;
  • Be able to read, write, and speak English and have a knowledge and understanding of U.S. government and history;
  • Be a person of good moral character and attached to the principles of the US Constitution.

Additionally, in certain circumstances, a person may already be a United States citizen and not need to apply for Naturalization, for instance, if you are a lawful permanent resident and your biological or adoptive parents became U.S. citizens before you turned 18. In that instance, you could instead apply for an N-600 Certificate of Citizenship.

For more information on Naturalization and Citizenship, please contact an experienced immigration lawyer at Victory Law Immigration today.

Self-Petition for Abused Spouses, Children, and Parents (VAWA) Asylum

As a battered spouse, child, or parents of a US citizen or resident, you may file an immigrant visa petition as authorized by a Congressional legislation known as the Violence Against Women Act (VAWA). VAWA allows spouses, children, and parents of US citizens, and spouses and children of US lawful permanent residents to file an immigrant visa for themselves without having to include or notify the abusive spouse.

Despite the name Violence Against Women Act, VAWA relief is available to all genders so long as they fit the other requirements, which are:

  • For Spouses: Abused spouse of US citizen or lawful permanent resident may file. Spouses may also file if they themselves have not been abused by their children have been abused by US citizen or permanent resident spouse. Spouse may include themselves on their children’s application so long as the child is unmarried and under 21.
  • For Parents: You may file if you are the parent of a US citizen andyou have been abused by your US citizen son or daughter.
  • For Child: You may file for yourself if you are an abused child under 21, unmarried, and have been abused by your US citizen or permanent resident parent. Your children may also be included on your petition, and you may file as a child after age 21 but before turning 25 so long as demonstrating that the reason for the delay was related to the abuse you suffered.

Eligibility Requirements for VAWA Self Petitioners

Spouse: You qualify as a VAWA eligible spouse if:

  •  You are married to US citizen or permanent resident abuser or reasonably believed you were married but later found out the marriage was not legitimized, you suffered battery or extreme cruelty by your US citizen or permanent resident spouse, or your child suffered battery or extreme cruelty from spouse, you entered into the marriage in good faith, not just for immigration benefit, you resided with spouse, and you are a person of good moral character.

Child: You qualify as a VAWA eligible child if:

  • You have been abused by US citizen or permanent resident parent, you have resided with your abusive parent, and you are a person of good moral character.
    • Note: a child under 14 is presumed to be a person of good moral character

Parent: You qualify as a VAWAA eligible parent if:

  • You are a parent of a US citizen son or daughter who is at least 21 or older at the time of filing, you have suffered battery or extreme cruelty from US citizen son or daughter, you resided with the abusive child, and you are a person of good moral character.

Process and Benefits of VAWA:

After determining qualifications, the process for a VAWA self petitioner is to file a form I-360 Petition for Amerasian, Widow(er), or Special Immigrant with USCIS. After filing you will receive a notice that your petition has been received, and in some cases, a Prima Facie Determination Notice which will give access to certain public benefits. You will also be eligible for work authorization in the United States when your petition is approved, and you may eventually be eligible to obtain lawful permanent residence, or a green card.

For more information on VAWA Self Petition for Abused Spouses, Children, and Parents, contact one of the experienced immigration attorneys at Victory Law Immigration today.

Asylum

The United States asylum laws are meant to protect individuals coming to this country seeking protection because they have suffered persecution, or have a fear that they will be persecuted, due to: race, religion, nationality, membership in a particular social group, or political opinion.

If you are seeking asylum in the United States based upon a well founder fear of persecution due to one of these categories, you may file a Form I-589 Application for Asylum and for Withholding of Removal, within 1 years of arrival to the United States.

You may include your spouse and children who are in the United States on your application at the time you file or at any time until a final decision is rendered in the case. Children must be under 21 and unmarried to be included in the asylum application.

Work authorization:

You may apply for permission to work in the United States (employment authorization) 150 days after filing a complete asylum application (excluding any delays caused by you) AND as long as no final decision has been made on your application. To apply for work authorization pending your asylum case, you must file a Form I-765, Application for Employment Authorization.

Bringing Family to United States:

If granted asylum, you may petition to bring your spouse and children to the United States by filing a Form I-730, Refugee/Asylee Relative Petition. You must petition within two years of being granted Asylum status unless there are any humanitarian reason to excuse the delay.

Obtaining Lawful Permanent Residency after Asylum:

You may file for a green card (lawful permanent residency) one year after being granted asylum. To apply for the green card, file a form I-485, Application to Register Permanent Residence or to Adjust Status. You must submit separate I-485 applications for each family member who received derivative asylum status based on your case.

Types of Asylum:

Asylum applications can be categorized in one of two ways: Affirmative Asylum cases, or Defensive Asylum cases.

Affirmative Asylum (with USCIS):

To apply for affirmative asylum, a person must be physically present in the U.S. You may apply regardless of how you initially entered the United States. You must apply within the first year of the date of your last entry to the United States, unless you can show:

  • Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing;
  • You filed within a reasonable amount of time given those  circumstances.

Note: If you file for affirmative asylum and your case is not approved and you do not otherwise have lawful immigration status, you may be issued a Form I-862 Notice to Appear and your case may be forwarded to an immigration judge at the Executive Office for Immigration Review (EOIR). The Immigration Judge would then conduct a de novo review of your case and issue an independent decision.

Defensive Asylum (with EOIR):

A Defensive application for asylum occurs when a person requests asylum as a defense against deportation from the United States. A person may only apply for defensive asylum if they are already in removal (or deportation) proceedings before an Immigration Judge in the Executive Office of Immigration Review (EOIR).

Generally, a person is placed into defensive asylum proceedings in one of two ways:

  • They are referred to an Immigration Judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or
  • They are placed in removal proceedings because they were detained in the United States for some reason, and found to be without proper legal documentation or immigration status, OR they were caught by US Customs and Border Protection trying to enter the United States without proper documentation and placed in expedited removal proceedings and determined by an Asylum Officer to have a credible fear of persecution or torture if they were to return to their home country.

An Immigration Judge will hear a defensive asylum claim in Immigration Court in the EOIR. The Immigration Judge will determine first whether the person is eligible for asylum, and ultimately, whether or not to grant the claim for asylum. If asylum is denied, the Immigration Judge will analyze whether the person is eligible for any other form of relief from deportation, and if not, the individual could be subject to removal from the United States. If ordered removed or deported, a person has the right to appeal the Judge’s decision to the Board of Immigration Appeals.

Below is a chart provided by USCIS highlighting the key differences between “Affirmative” and “Defensive” Asylum Processes

Differences

Because the United States’ Asylum laws are complex and not always uniformly applied by Immigration Judges and officers of USCIS, it is best to consult with a qualified immigration lawyer before applying for asylum, or presenting an asylum claim in court.

For more information about affirmative and defensive asylum and how these applications are processed and decided, please consult an Immigration Attorney at Victory Law Immigration today.

DACA: Form I-821D, Consideration of Deferred Action for Childhood Arrivals

On June 15, 2012, President Obama issued an executive order granting deferred action status and work authorization to certain young individuals who were born abroad but currently residing in the U.S. without any type of lawful status. This executive order, known as “DACA”, while politically controversial, opened the door for millions of undocumented children who identified as Americans, were often times brought to this country through no fault of their own yet forced to live among the shadows without the ability to work, apply for drivers licenses, or attend educational institutions in many cases.

On November 20, 2014, President Obama announced an initiative to expand his highly successful and impactful DACA program to parents as well. Deferred Action Parents Citizens and Lawful Residents, which came to be known as DAPA, was to extend the same deferred status and ability to apply for work authorization and social security cards to the undocumented parents of citizen or lawful permanent resident children living in the United States.

Unfortunately, the DAPA program was challenged by a number of states including Texas, and the Supreme Court recently split 4-4 on whether the the order was lawful or not. Therefore, the DAPA program is not in place at the moment. However, the Department of Justice has petitioned for the US Supreme Court to re-hear the case in its next session, so there is hope.

The initial DACA program as announced by President Obama is still in effect with USCIS, and individuals who meet these requirements are eligible and encouraged to apply, with the help of an attorney at Victory Law Immigration.

Requirements for I-821D Consideration for Deferred Action for Childhood Arrivals, DACA:

  • Were under the age of 31 as of June 15, 2012;
  • Came to the United States before reaching your 16th birthday;
  • Have continuously resided in the United States since June 15, 2007, up to the present time;
  • Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  • Had no lawful status on June 15, 2012;
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Process:

The process for filing for DACA includes submitting the form I-821D application, paying the requisite filing fee of 465.00-a 380.00 processing fee and an 85.00 biometrics fee- and submitting the supporting documentation required for USCIS to determine if you meet all of the eligibility requirements.

Once received, an applicant will get a notice to attend a biometrics appointment, and then the DACA decision will come back. From time to time, if more information is needed, a Request for Evidence, or RFE will be issued. An applicant will have about three months to gather whatever additional evidence is required and then respond. If satisfied that the applicant qualifies, they will be issued a Confirmation Notice along with an Employment Authorization card that will entitle them to work legally in the United States, and in many cases apply for a Social Security card and a Driver’s License or State ID.

Because the I-821D process can be complicated and because there are many requirements that are often not easily met, it is highly recommended that a person consult with an immigration lawyer before applying for DACA.

The attorneys at Victory Law Immigration LLP are available for a free DACA consultation today.

DI-751 Application for Removal of Conditions

A conditional lawful permanent US resident is someone who obtained their green card through marriage within the first two years of marriage. Rather than being granted a ten year green card, a conditional lawful permanent resident is granted a two year green card. The conditions must then be “removed” through application by the conditional resident.

The reason for this is that the government wishes to place the burden on the petitioner to prove that the marriage was not fraudulent, or done to evade the immigration laws of the United States.

Generally, a person who is granted conditional permanent residence must apply to remove the conditions at least 90 days before their 2 year green card expires. You may apply to remove your conditional residence and have your green card converted into a 10 year green card if:

  •  You are still married to the same US citizen or resident after 2 years. Children may be included in this application if they received resident status at the same time or within 90 days as you did;
  • You are a child and for a valid reason cannot be included in your parents’ application;
  • Are a widow or widower who entered into your marriage in good faith;
  • You entered into the marriage in good faith, but then the marriage ended in divorce or annulment; or
  • Entered into the marriage in good faith, but you or your child was battered or subjected to extreme hardship by your U.S. citizen or permanent resident spouse.

You should apply to remove conditions on your conditional residency 90 days prior to the expiration date of your green card. Check the expiration date on the green card to confirm this date. If you do not remove conditions in time, or fail to apply for whatever reason, you could lose your conditional residency and be subjected to removal or deportation from the United States.

Form I-131 Advance Parole/Permission to Travel

Most aliens who have pending applications for immigration benefits or for changes in non-immigrant status require Advance Parole, or permission to re-enter the United States, after traveling abroad.

Without this advance parole, any applicant who is trying to adjust their status to that of a lawful permanent resident will be considered to have automatically abandoned their application, and would then have to remain outside of the United States and do consular processing.

You must apply for advance parole before leaving the United States, pay the required filing fee, and submit the appropriate documentation. If granted, you may then travel abroad and return within the timeframe granted on your travel document.

In certain instances of emergency or for humanitarian circumstances, Advance Parole requests may be expedited. Such situations include:

  • Cases of severe financial loss to a company or person;
  • Emergency situations;
  • Humanitarian reasons;
  • Compelling interest to the government of the United States

Advance Parole for Recipients of I-851 Deferred Action for Childhood Arrivals (DACA)

In some cases, individuals who have been granted deferred action or DACA status, are able to apply for advance parole and travel abroad. Upon return to the United States, that person is considered to have been lawfully admitted, which is a critical fact if they intend to adjust their status to a lawful permanent resident through marriage to their United States citizen family members, or spouse, in the future. This is a complicated process and not without risk, but many have been able to change status from DACA recipient to lawful permanent resident of the United States, and visit family members in their home countries who they have not seen for many years in the process.

For more information on how a DACA recipient can apply for advance parole and then adjust to a lawful permanent resident, please contact one of the qualified immigration attorneys at Victory Law Immigration, LLP.

 

B1/B2 Business and Visitor Visas

Tourists or business travelers who are citizens of certain countries that participate in the Visa waiver program with the United States may be eligible to visit without a U.S. visa. The visit must be limited to 90 days or less in the United States, and travelers must meet certain requirements.

Furthermore, citizens of Canada or Bermuda generally do not require a visa to visit the United States for tourism either.

In other cases, foreign nationals who wish to enter the United States must first obtain a visa to do so. Visitor visas are non-immigrant visas for people who want to enter the United States temporarily for business, tourism, pleasure, or visiting.

  • Business Visa (B-1 Category):

A person who wishes to travel to the U.S. to consult with business associates, attend a professional conference, settle a family estate, or negotiate a business contract, may qualify for a B-1 Business Visa.

  • Tourism and Visitor Visa (B-2 Category):

A person who wishes to come to the United States temporarily for tourism, vacation, holiday, to visit family and friends, for medical treatment, to participate in certain social events, to participate as an amateur in a musical or sports event so long as they are not being paid, or to enroll in a short, recreational course of study not for credit towards a degree, may apply for a B-2 Tourist or Visitor Visa.

In order to apply for a B1/B2 Visa, a person must apply through the Department of State at the U.S, Embassy or Consulate where they live abroad. They must fill out a Form DS-160, upload a passport style photograph, and pay the requisite processing fee which varies by country. When the fees and paperwork have been processed, then an interview is scheduled at the U.S. Embassy or Consulate where the person lives. When the appointment has been scheduled, the applicant will be notified with a list of documents to bring to the interview and given a date and time to appear.

If approved for the B1/B2 Visa after the interview at the Embassy or Consulate, the foreign citizen will be allowed to travel to a U.S port of entry such as a border checkpoint or an airport, and will be issued an I-94

Arrival/Departure Record that will be stamped upon entering the United States. Typically, a request for an extension of the B1/B2 Visa will not be granted, and a person must depart on the date indicated on their I-94. Failure to do so will result in someone being considered “out of status” which can have severe impact on their ability to change status or become a lawful permanent resident in the future, and could result in deportation from the United States.

For more information on the B1/B2 Business/Visitor Visa, please contact an attorney at Victory Law Immigration for a free consultation today.

E1/E2 Visa: Treaty Country Traders and Investors

The basis of this classification lies in treaties meant to enhance or facilitate economic and commercial interaction between the United States and the foreign treaty country. The US Department of State maintains an extensive list of treaty countries that qualify for this type of visa.

While E1/E2 Visa classification does mandate compliance with a long list of requirements, many of these standards are subject to the exercise of a great amount of judgment and discretion by the consular officer reviewing the application. In view of the judgmental nature of this classification, consular officers are supposed to be flexible, fair, and uniform in adjudicating an E visa application.

As in the case of any visa application, the burden of proof to establish status rests with the applicant. If the applicant’s qualification for E1 or E2 classification is uncertain, the consular officer may request whatever documentation is needed to overcome that uncertainty, often in the form of a request for evidence.

Requirements for E-1 Treaty Trader

In evaluating E-1 applications, consular officers must determine whether:

  • The requisite treaty exists
  • The individual and/or business possesses the nationality of the treaty country
  • The activities constitute trade within the meaning of INA 101(a)(15)(E)
  • Such trade is substantial
  • Such trade is principally between the United States and the treaty country
  • The applicant, if an employee, is destined to an executive/supervisoryposition or possesses skills essential to the firm’s operations in the
  • United States; and
  • The applicant intends to depart the United States when the E-1 status
  • terminates.

Requirements for E-2 Treaty Investor

In evaluating E-2 applications, consular officers must determine whether the:

  • Requisite treaty exists;
  • Individual and/or business possess the nationality of the treaty country;
  • Applicant has invested or is actively in the process of investing;
  • Enterprise is a real and operating commercial enterprise;
  • Applicant’s investment is substantial;
  • Investment is more than a marginal one solely for earning a living;
  • Applicant is in a position to “develop and direct” the enterprise;
  • Applicant, if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm’s operations in the United States; and
  • Applicant intends to depart the United States when the E-2 statues terminates.

E-3 Visa: Certain Specialty Occupation Professionals from Australia

The E-3 Visa classification is only available to Australian nationals. Applicants must intend to come to the United States solely to perform services in a specialty occupation. The specialty occupation requires theoretical and practical application of a body of knowledge in professional fields, and at least the attainment of a bachelor’s degree, or its functional equivalent, as a minimum for entry into the occupation in the United States.

To qualify for an E-3 visa, you must demonstrate that you:

  • Are a national of Australia
  • Have a legitimate offer of employment in the United States
  • Possess the necessary academic or other qualifying credentials
  • Will fill a position that qualifies as a specialty occupation

Process:

Form I-129, Petition for Nonimmigrant Worker; Labor Condition Application (LCA) that has not previously been used in an H-1B Application, Academic or other credentials demonstrating qualification for the position, Job Offer Letter from U.S. Employer establishing that Applicant will be engaged in a specialty occupation and be paid the higher of the actual or prevailing wage, necessary license or official permission to practice in the specialty occupation.

Family of E3 Visa Applicants are entitled to E3 Status, spouse are entitled to work authorization in the United States, while children are not. The period of stay is 2 years per extension, with no limit of extensions.

F Visa: Non-immigrant Student Visa

Generally, a citizen of a foreign country who wants to enter the U.S. in order to study must first obtain an F-1 Student Visa. This category of visa applies to any foreign born individual who wishes to attend university, college, high school, private elementary school, seminary, or other academic institutions such as a language training program.

Note- if you are a citizen of a Visa Waiver country or have a visitor visa, this is not sufficient to study in one of the above listed areas while in the United States, and an F-1 Visa is required first or you could be found to have violated the terms of your stay.

Before you can apply for an F-1 Student Visa, you must first apply and be accepted to an SEVP certified school. The Department of State provides a link to certain websites that list SEVP certified schools in the United States.

Once accepted to an SEVIS school, you must register and pay the I-901 fee, and then you will be provided with a form I-20 from the academic institution to bring to the Visa interview.

In order to apply for a F-1 Student Visa, a person must apply through the Department of State at the U.S. Embassy or Consulate where they live abroad. They must fill out a Form DS-160, upload a passport style photograph, and pay the requisite processing fee which varies by country.

When the fees and paperwork have been processed, then an interview is scheduled at the U.S. Embassy or Consulate where the person lives. When the appointment has been scheduled, the applicant will be notified with a list of documents to bring to the interview and given a date and time to appear.

If approved for the F-1 Visa after the interview at the Embassy or Consulate, the foreign student will be allowed to travel to a U.S port of entry such as a border checkpoint or an airport, and will be issued an I-94 Arrival/Departure Record that will be stamped upon entering the United States.

Typically, a request for an extension of the F-1 Visa will not be granted, and a person must depart on the date indicated on their Form I-94. Failure to do so will result in the student being considered “out of status” which can have severe impact on their ability to change status or become a lawful permanent resident in the future, and could result in deportation from the United States.

For more information on the F1 Student Visa, please contact an attorney at Victory Law Immigration for a free consultation today.

H-1B Visa: Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models

The H-1B Visa is a temporary, nonimmigrant work visa reserved for specialty occupations, DOD cooperative research and development project workers, and fashion models.

  • H-1B Visa for Specialty Occupations
  • H-1B2 Visa for DOD Research and Development Project Workers
  • H-1B3 Visa for Fashion Models

The petitioner seeking an H-1B Visa must establish that the job requires the services of a professional, that the foreign worker qualifies as such a professional, and that a labor condition application has been certified by the Department of Labor. Generally, the H-1B visa is available for those workers who have a bachelor’s degree in a technical field who will be working in a technical position that requires an undergraduate degree. Individuals who do not have an undergraduate degree may utilize their experience to compensate for any years unfinished in their undergraduate education.

To protect the salaries of foreign nationals, employers are required to pay the higher of either the actual or prevailing wage. The actual wage is the wage paid to other co-workers in similar positions; the prevailing wage is the average salary paid to workers in the area of intended employment.

The prevailing wage is often obtained through a request to the employment economic agency in the employer’s state. However, other sources of prevailing wages are permitted and may be used. As part of the H-1B application process, the employer must make certain promises. In addition to promising to pay the higher of the prevailing or actual wage, the employer promises that hiring an H-1B worker will not adversely affect other co-workers. Furthermore, the employer attests that it will take certain action in the event of a strike or lockout and that it has provided adequate notice to other workers about its hiring a foreign national.

The final step of the H-1B petition process involves submitting the package to USCIS.  The USCIS normally takes about 2 – 4 months to process, review, and adjudicate an H-1B petition. Since there are a limited number H-1Bs available each year, timing is important, and the foreign national should be sure to apply for an H-1B early enough so that his petition will not become subject to the cap. If a petition does not make it within the annual allotment, he will have to wait until October 1, for the INS to resume processing for the following fiscal year.

Heavily used by the IT industry, many H-1B applicants are computer programmers, engineers, analysts, etc. The H-1B visa has the interesting characteristic of permitting dual intent. Unlike many other visas, a holder of an H-1B visa may intend to be in the U.S. for a temporary and permanent period of time. Thus, during the duration of their H-1B visa, many individuals apply for a green card and hope to adjust their status to become a permanent resident.

For more information on the H-1B2 Visa for DOD Research and Development Project Workers, and the H-1B3 Visa for Fashion Models, please contact Victory Law Immigration for a free consultation today. One of our experienced Immigration Lawyers will be happy to discuss the application process.

L Visa: Intracompany Transferee: Executive, Manager, or Employee with Specialized Knowledge

Global, multi-national corporations often wish to transfer key employees from abroad to their U.S. workplace. Congress created the L1 visa to facilitate this transfer of personnel. Applicants must satisfy certain qualifications to qualify for the L1 Intracompany Transferee Visa.

  • The Applicant must have been employed for at least one year within the past three years prior to the submission of the application of the L1 visa.
  • The Applicant must be coming to the U.S. to continue providing services for this same employer.
  • The Applicant must be working in capacity as a manager, executive or in a position that requires specialized knowledge.

Typically, the approved L1 is granted for a period of three years. Thereafter, extensions are usually given in two-year increments. The total period of stay permitted for managers and executives is seven years. For specialized workers, the total duration is five years. Once the maximum duration has been reached, the alien must reside abroad for at least one year, then he or she may return to the U.S. in L-1 status.

The application for an L-1 visa will contain information about the company and the alien. Information concerning the company will detail the nature of the business and the relationship it has with its U.S. affiliate. Information regarding the alien will provide a job description and discuss how the position is either a manager, executive, or specialized worker position. The support letter should also discuss the qualifications of the alien and how she is suitable for this position.

One benefit to the L-1 program is that it permits companies to apply for “blanket” L-1. The blanket status, once attained, enables the company to avoid having to file individualized applications for each employee it wishes to transfer to the U.S., which in turn saves the company significant time. Instead, the alien can take a copy of the I-797 approval notice and apply directly at the nearby U.S. consulate to obtain a L-1 visa stamp in his passport.

Process: I-129 Petition, Company Support Letter, DS-160, Form 797 Blanket Petition (if Applicable)

LO-1 Visa: Individuals with Extraordinary Ability and/or Achievement

Certain individuals who have managed to achieve a level of notoriety or “distinction” in their profession may qualify for an O-1 nonimmigrant visa. The O-1 is a temporary visa for an individual who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who has demonstrated extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for such achievement.

This Visa category is not simply limited to performers but is also available to individuals who may be active behind the scenes. These might include lighting designers, choreographers, conductors, costume designers, animal trainers, etc.

For those in the motion picture or TV industry, the standard to be met is more rigorous. The applicant must show that she has a “very high” level of accomplishment in the motion picture or TV industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the motion picture or television field. This means that someone who is merely known or even well-known may not necessarily qualify as an extraordinary alien. However, this heightened standard does not require that the alien be in the top 1% of his or her profession.

Process:

I-129 Petition, Consultation, Contract for Services between Petitioner and Beneficiary, Itinerary, Evidentiary Criteria

P Visa: Internationally Recognized Athlete, Member of Entertainment Group, Performer or Group under Reciprocal Exchange Program, or Artist or Entertainer Part of a Culturally Unique Program

The P-Visa category is reserved for aliens who wish to come to the United States to perform services as an internationally recognized athlete, entertainer, and/or performer. There are several different categories of P Visas:

  • P-1A: Internationally Recognized Athlete
  • P-1B: Member of an Internationally Recognized Entertainment Group
  • P-2:Individual Performer or Part of a Group Entering to Perform Under a Reciprocal Exchange Program
  • P-3: Artist or Entertainer Coming to Be Part of a Culturally Unique Program

Additionally, spouses and minor children of a P-1, P-2 or P-3 alien may accompany them to the United States on a P-4 visa.

Typically, an agent employer or organization will file for the P Visa on behalf of the foreign applicant. The petitioning employer, agent, or sponsoring organization must file a Form I-129 (Petition for Non-Immigrant Worker) for all P-1, P-2 and P-3 petitions with the USCIS in order to determine their eligibility for the visa and review the services to be performed while in the United States before the alien may apply for a visa or seek admission into the country.

Please keep in mind that if a P alien in the United States wishes to change employers or sponsors, the new employer or sponsor must file a new I-129 petition and request to extend the alien’s stay in the United States. The alien may not begin employment with the new employer or sponsor until both the petition and extension request have been approved.

Furthermore, if the beneficiary will work in more than one location, then the petitioner must include an itinerary with the dates and locations of the performances with the petition. If the beneficiary will work for more than one employer within the same time period, then each employer must file a separate petition. However, a petition involving multiple employers may also be filed by a person or company in business as an agent who acts as an agent for the both the employers and the beneficiary,” as long as certain conditions are met.

If you are an intending applicant, or an agent, employer, or organization that would like more information about the P Non-Immigrant Visa process, please contact Victory Law Immigration today and one of our immigration lawyers will be happy to provide a free consultation to discuss the process, costs, and time-frame for applying.

TN Visa: NAFTA Professional Workers from Canada and Mexico

The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada and Mexico. The TN non-immigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level.

Professionals eligible to seek admission as TN non-immigrants include accountants, engineers, lawyers, pharmacists, scientists, and teachers.

You may be eligible for TN non-immigrant status, if:

  • You are a citizen of Canada or Mexico;
  • Your profession qualifies under the regulations;
  • The position in the United States requires a NAFTA professional;
  • You have a prearranged full-time or part-time job with a U.S. employer (but not self-employment – see documentation required below); and
  • You have the qualifications to practice in the profession in question.

Canadian Citizens

If you are a Canadian citizen, then you are not required to apply for a TN visa at a U.S. consulate. You may establish eligibility for TN classification at the time you seek admission to the United States by presenting required documentation to a U.S. Customs and Border Protection (CBP) officer at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station.

You must provide the following documentation to the CBP officer:

  • Proof of Canadian citizenship;
  • Letter from your prospective employer detailing items such as the professional capacity in which you will work in the United States, the purpose of your employment, your length of stay, and your educational qualifications; and
  • Credentials evaluation (if applicable), together with any applicable fees.

Alternatively, a prospective TN employer may choose to file on behalf of a Canadian citizen who is outside the United States by submitting a form I-129, Petition for Non-immigrant Worker to USCIS. If USCIS approves the Form I-129, the prospective worker may then apply for admission to the United States as a TN nonimmigrant by providing the following documentation to a Border Patrol officer at certain designated U.S. ports of entry or at a designated pre-clearance/pre- flight inspection station:

  • Proof of Canadian citizenship; and
  • Approval Notice from USCIS for Form I-129.

In addition, when applying for admission, you should have in your possession a copy of the Form I-129, and all supporting documentation that was submitted to USCIS in order to respond to questions about your eligibility.  You should also be prepared to pay any applicable inspection fees at the time you seek admission.

Mexican Citizens

If you are a Mexican citizen, then you are required to obtain a visa to enter the United States as a TN non-immigrant. You should apply for a TN visa directly at a U.S. embassy or consulate in Mexico. Once you are approved for a TN visa, you may apply for admission at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre- flight inspection station.

Period of Stay/Extension of Stay

The Initial Period of Stay is up to Three Years. If you wish to remain in the United States beyond your initial period of stay without departing from the United States, you must seek an extension of stay. If you are in the United States, your employer may file Form I-129 on your behalf.

Alternatively, you may depart from the United States before the date your status expires, and then, once abroad, you may apply at a CBP-designated U.S. port of entry or at a designated pre-clearance/pre- flight inspection station using the same application and documentation procedures required at the time of your initial application for admission as a TN non-immigrant.

Dependents of TN Nonimmigrants

Any accompanying or “following to join” spouse and children under the age of 21 may be eligible for TD (derivative) non-immigrant status. Spouses and children are not eligible to work while in the United States, and are only granted status for as long as the principal TN immigrant

Extending Your TD Nonimmigrant Stay

If a Canadian or Mexican TN non-immigrant applies for an extension of stay in the United States at the end of his or her period of admission or authorization as a TN, any eligible TD family member may apply to extend their status without the need to travel abroad.

If a Mexican TD dependent wishes to travel abroad following approval of any such extension of stay and expiration of the TD visa, the family member will be required to apply for a new TD visa at a U.S. embassy or consulate before being permitted to return to the United States in TD status.

For more information on TN non-immigrant visas, please contact one of the experienced immigration attorneys at Victory Law Immigration today.

U-Visa: Nonimmigrant Visa for Victims of Criminal Activity

Victims of certain criminal activity may be eligible for a U-Visa, so long as certain criteria is met. To qualify for a U-Visa, the following must be true:

  • You have suffered mental or physical abuse as result of the criminal activity;
  • The criminal activity occurred in the United States or violated US law;
  • You have been helpful to law enforcement or government officials in the investigation or prosecution of the criminal activity;
  • You must be admissible to the United States. If not admissible, you must apply for a waiver on a form I-192, Application for Advance

The following is a list of criminal activity that may qualify for a U-Visa:

criminal activity

Process:

To apply for a U Visa, you must meet all of the USCIS criteria and file a Form I-918 Petition for Non-immigrant Status, along with a Form I-918 Supplement B, NonImmigrant Status Certification which is a form that must be signed by an authorized official of the law enforcement agency responsible for the criminal case who must confirm whether the applicant was helpful or will be helpful in the prosecution of the case. Furthermore, if any inadmissibility issues are present, a Form I-192, Application for Advance Permission to Enter as a Non-immigrant.

Special Notes:

A U Visa may also be available to persons outside of the United States, even if they are in the process of deportation or have been deported in the past, in certain instances. Certain qualifying family members are eligible for derivative U visa status based on their relationship to the principal applicant.

Under 21 Years of Age: If someone is the principal applicant for a U Visa and Under 21 Years of Age, they may petition for their spouse, children, parents, and unmarried siblings under age 18.

21 Years of Age or older: If someone is the principal applicant for a U Visa and 21 years of age or older, they may petition on behalf of their spouse and children.

When a U Visa is granted, it is valid for four years. However, an extension may be available in limited circumstances.

Statutory Cap: There is an annual 10,000 numerical limit to principal U Visa applicants, however, there is no cap for spouses, children, or other eligible family members. Once the cap has been reached, USCIS will place eligible petitioners and their derivative family members on a waiting list and grant them deferred action, which makes them eligible for work authorization while waiting for the U Visa to become available.

Green Card: After U Visa status is granted, you may be eligible for a green card, or lawful permanent residency, as long as the following is true:

  • You have been physically present in the United States continuously for three years while in U Visa status;
  • You have not unreasonably refused to provide assistance to law enforcement since you received the U Visa;
  • You are not otherwise ineligible to adjust your status to that of a lawful permanent resident of the United States.