General Immigration Information

The Basics Of Immigration Law

Immigration law is the combination of laws, regulations and rules that govern who is able to enter a country. Immigration law defines a person's citizenship and residency status. The rights and obligations as defined by immigration law effect a person's ability to enter, travel, reside in and become citizens. In the United States, according to the United States Constitution, Congress is empowered to oversee and regulate immigration affairs. Title 8 of the U.S. Code comprises the majority of laws that encompass Federal immigration law. The Federal government, with limited exception, has supremacy to administer and oversee immigration laws with the purpose of securing the nations borders. There is some recent controversy with regards to the role of state law involvement in immigration policy.

What is A Lawful Permanent Resident ?

A Lawful Permanent Resident oftentimes referred to as a Legal Permanent Resident (LPRs) or "Green Card" holders, are non-citizens who are lawfully authorized to live permanently in the United States for an indefinite period. A Lawful Permanent Resident maintains citizenship status from a foreign country while living in the United States. An LPR must carry the passport of a foreign country to travel abroad and in addition must carry a green card to re-enter the United States. The application to Register Permanent Residence can be found on the U.S. Citizen and Immigration Services website Form I-485, Application to Register Permanent Residence or Adjust Status (https://www.uscis.gov/i-485)

A Lawful Permanent Resident that exits the United States with an intent to make a home elsewhere, may be determined to have abandoned their home in the United States and have forfeited their green card. Immigration authorities may determine when a person spends an extended period of time outside of the United States that the person has abandoned their residence. The grounds for inadmissibility to renter the United States are determined by immigration authorities at the port such that there is no set formula or specific period of time abroad that can determine whether a lawful permanent resident has abandoned their LPR status. A returning LPR that has been absent for a continuous period of 180 days shall be regarded as seeking admission into the United States and will invite Immigration authorities (Custom and Border Protection) to determine whether the LPR abandoned their LPR status. A period of time above 1 year spent outside of the United States will automatically trigger a higher level of scrutiny at the port and a person likely be barred from reentry without first obtaining a reentry permit.

Lawful Permanent Residents do not have any rights to vote in the elections of the United States. In order to vote in a U.S. election a person must satisfy the requirements of becoming a U.S. citizen. A lawful permanent residents may apply for U.S. citizenship after residing in the United States for a period of at least 5 years.

Becoming a U.S. Citizen - Citizenship Through Naturalization

Naturalization is the process by which U.S. citizenship is granted to a foreign citizen or national. The requirements to become a U.S. Citizen are established by Congress in the Immigration and Nationality Act (INA). The application for Naturalization can be found on the U.S. Citizen and Immigration Services website Form N-400, Application for Nationalization (https://www.uscis.gov/n-400)

A person applying for U.S. Citizenship through the process of Naturalization must meet certain requirements. Generally, an applicant must be at least 18 years of age although there are certain exceptions for the children of lawful permanent residents seeking naturalization. A person must maintain their status as a lawful permanent resident and hold a green card for usually five years although there are exceptions for certain categories of applicants. The applicant must have a physical presence within the United States for a period of at least half of the required years of permanent residence. The applicant must maintain a continuous residence within the United States. The applicant must have an actual residence> within the same U.S. state for a period of 90 days before filing for U.S. Citizenship. An applicant must have demonstrated good moral character as demonstrated by adherence to the principles of the U.S. rule of law no exhibition of criminal behavior. The applicant must be able to speak, write and write English. The applicant must be able to pass a test on U.S. history and government. An applicant must affirm loyalty to the United States and take an oath to support and defend the Constitution and the laws of the United States of America.

Non-immigrant Visas - Work Visas, Student Visas and Temporary Visas

What is the H-1B Work Visa ?

The H-1B is a work visa under the Immigration and Nationality Act that permits employers in the United States to hire foreign workers in specialty occupations. The H-1B non-immigrant visa is a temporary visa for professional workers in certain types of specialty occupations that also require a bachelor’s degree or equivalent as a minimum requirement in order to obtain entry into the United States.

The criteria to establish a job that qualifies as a "special occupation" requires that an individual hold a required degree or have equivalent experience in a "related field" that correlates to the position. In recent years there has become much stricter scrutiny by Immigration authorities to the "specialty occupation" and "related to" criteria that enable non-immigrants to obtain an H-1B visa. The H-1B visa is valid for three years and can be renewed for an additional three years.

The employer applicant needs to file a Form I-29 (https://www.uscis.gov/i-129) in order to petition that the foreign national gain entry to the United States to work. The employer must to attest that it is paying the prevailing wage for the occupational classification; that working conditions for the H-1B employee will not adversely effect similarly situated employees in the area, there is no current strike or labor dispute in the place of employment and that notice of this filing has been provided to labor representatives or otherwise.

Applying for Permanent Residence on an H-1B Visa

An H1-B visa holder is allowed to remain in the United States for a maximum of 6 years after which point the individual must return to their home country or apply for permanent residency. A sponsoring employer can petition the immigration authorities at any time for an employee to change the H-1B visa status to that of permanent resident. An employer must file Form I-140 (https://www.uscis.gov/forms/petition-filing-and-processing-procedures-form-I-140-immigrant-petition-alien-worker) which is a petition for Immigration authorities to allow employment of a foreign national on a permanent basis. An employee must file a I-485 Form (https://www.uscis.gov/i-485)which is a petition to request a visa number based on the I-140. It is not uncommon for an attorney to file a I-140 and I-485 Form concurrently in order to speed up the Green Card process.

Student Visas

The F1 Visa, J1 Visa and the M1 Visa are the three different student visa types that Immigration authorities issue to an international student that is requesting entry into the United States. The F1 and J1 visas allow for the student to become employed in the United States, while the M1 Visa does not allow for employment during the time of studies. An M-1 Visa holder may obtain full time work when vocational studies have finished, but only in a practical training role that is related to their vocation.

An F1 visa is the most common form of international student visa in the United States. An F-1 student is defined by the Immigration and Nationality Act as an individual who is coming temporarily to the United States and solely for the purpose of pursuing a course of study at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the United States. The F1 visa requires that a student maintain the minimum course for full time student status.

A J1 visa is a student exchange visa. A J1 exchange visitor is defined by the Immigration and Nationality Act as an alien who is coming temporarily to the United States as a participant in a program designated by the Director of the United States Information Agency. The J1 visa program is for visitors participating in such a designated exchange program for students, professors, research scholars, training programs, experts, physicians, summer camp counselors, au pairs, among others.

An M1 visa is a vocational student visa. An M-1 student is defined by the Immigration and Nationality Act as an individual who is coming temporarily to the United States and solely for the purpose of pursuing a full course of study at an established vocational or other recognized nonacademic institution.

What is Asylum?

Asylum is a legal status granted to a person someone that has fled a foreign country to the United States. Asylum may be given to foreigners that establish a true fear of persecution in their nation of origin. A person may be granted asylum status at a port of entry or a person already living in the United States. A person living in the United States may request asylum within 1 year of their arrival by filing a Form I-589 (https://www.uscis.gov/i-589) A person that is granted asylum may apply for permanent resident status after 1 year of being granted asylum.

Deportation

Deportation is the formal removal order of an alien from the United States for violating the immigration laws of the United States. A deportation or removal may be by an Immigration Judge without the imposition of any fine or punishment.

Voluntary Departure

An alien may voluntarily depart from the United States without an order of removal from a court. An alien allowed to voluntarily depart concedes the ability to be removed even though the alien is not prohibited from seeking admission at a port-of-entry at any time. The voluntary departure of an alien may or may not have been preceded by a hearing before an immigration judge and the failure to depart within the period of time prescribed by a court order may result in a fine and a ten-year bar to several forms of relief from deportation.

Hiring an Immigration Lawyer

An immigration attorney should be a duly licensed attorney that has the requisite experience in the area of immigration law in which the client needs assistance. There are many administrative process and procedures that will require an individual or family to reveal detailed personal information to a lawyer. It is therefore strongly encouraged to hire an immigration attorney in which there is a high level of trust and confidence. It is not a legal requirement to hire an immigration attorney for many immigration proceedings, including when applying for an immigrant visa or permanent resident status. Nevertheless, an experienced immigration attorney will save a lot of time and frustration because the immigration law is oftentimes complicated and bureaucratic.

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