Yearly Archive March 19, 2012

ByStaff

Getting a Green Card: Who Qualifies For the LIFE Act?

The Legal Immigration Family Equity (LIFE) Act allows some people to change their status to permanent resident even if they would not be otherwise eligible. Protection under the LIFE Act is called Section 245 adjustment of status and it might be able to help you get a green card.

To get a green card under the LIFE act, someone needs to have petitioned for you as an alien worker or relative or have a labor certification filed before April 30, 2001. If you have one of these petitions in your name, you may qualify for a green card through the LIFE act. Section 245 needs you to have a visa readily available to you, so file your form when one becomes available. If you have a visa available and the proper certification (listed above) the LIFE Act can provide permanent residence regardless of unlawful presence in the U.S., working illegally in the U.S., or leaving the U.S. during your stay, which disrupts your continuous stay. This means you can file for Section 245 residence under the LIFE Act if you are currently present in the U.S. unlawfully or have been working without a permanent work visa.

In order to receive a green card under section 245, you must be admissible to the U.S. This means you should be careful not to trigger inadmissibility. For example, you should not depart the country after unlawful stay in the U.S. because you will be barred from re-entry. Look into INA law for instructions on avoiding inadmissibility.

Children and spouses of section 245 green card holders may also be offered protection from removal if they have been living in the U.S. and can be granted employment lawfully under your LIFE Act residence card.

You should check the dates that section 245 requires you or your family to have been in the U.S. because they are often changing. Always be careful to file the most current forms with the most current information to avoid delays in your application process.

For more information and help with getting a green card, contact immigration attorney Phillip Kim!

(559) 761-9742

ByStaff

Are You a Mexican Professional Worker? Learn How to Apply for a TN NAFTA Visa

 

The TN NAFTA visa is meant for professional workers from Mexico and Canada. This visa allows Mexican citizens to come to the U.S. and work for at a professional job that meets NAFTA requirements. To learn more about those requirements, see our past articles.

You must have a TN NAFTA visa before entering the U.S.

The process of applying involves proving that your employment is on par with NAFTA requirements. Required documents are: Form DS-160 (Nonimmigrant Visa Application, $140), a valid passport, a 2×2 photo of you, and a letter or statement from your boss or future employer in the U.S. This letter should outline the following information: facts about your profession (stating that the profession requires someone with professional ability), evidence that you will be hired (how the employer will pay your salary, full time or part time), and a detailed statement, letter, or contract that explains the business activities that your employer will provide.

This letter or contract will explain why you are entering the U.S. and your new job with the U.S. employer. The employer should also describe how long you plan to stay in the U.S. for, as well as your educational background and qualifications that show your status as a professional worker. Your employer must also explain that he or she complies with state law and DHS regulations that concern the business or place of employment. The employer should explain how he or she is going to pay your salary.

If you choose to bring your family with you, they will need to submit paperwork as well. Your spouse and any children under the age of 21 can join you in the United States. First and foremost, they must prove their relationship to you. They must also provide proof of their citizenship in Mexico and copies of your entry documents (in other words, the family must show that the TN NAFTA visa holder is obeying legal requirements). Also, the family does not have to have Mexican citizenship. They can be citizens of another country.
Your family will be allowed to study but not work. If you are already in the United States and want your family to join you, they will need copies of your I-94 papers (Arrival-Departure Record) to show that you are still maintaining your status.

Basically, all of this means that you must establish that the job you will be employed for is a legitimate one that belongs to a NAFTA list category. You have to show that your intended stay is only temporary (show that you have a stable home in Mexico). Your employer has to demonstrate that you, the applicant, meet all the minimum degree requirements for the job you are going to take. Degrees, diplomas, educational certificates, and professional licenses or membership to professional organizations are all examples of your educational status.

You should translate documents that are written in Spanish. And include validation of your documents by a credible outside source – there are some companies that offer professional validation of documents. You may need to contact one of these agencies.
Also show your work experience or business records if you were self-employed. All of these documents will help demonstrate that you are coming to the U.S. to work in a special field. One note: you do NOT need to prove that you are licensed to work in a certain field.

Every state has different laws relating to this issue. If you want to learn more, contact Immigration Attorney Phillip Kim. He has expertise in immigration law and can help you determine if the NAFTA Visa is the right type of visa for you.

(559) 761-9742

ByStaff

Canadian Professional Workers: Are You Eligible for a TN NAFTA Professional Visa?

 

If you are a professional worker, you have a lot of options when it comes to applying for a visa. EB-1, H-1B, and E-2 are just a few of the many visas available to you. The Phillip Kim Law Center seeks to educate you and let you know what options are available to you so you can take the right steps towards getting a visa and possibly citizenship.

This article will cover one type of professional worker status visa, the TN NAFTA Professionals visa. This visa is based on the NAFTA (North American Free Trade Alliance). It is a non-immigrant status visa that allows Canadian citizens to work in a business activity in the United States.

To be eligible for this type of visa, your profession must meet the requirements. First, your profession must be one that is on the NAFTA List: professions like accountants, engineers, lawyers, pharmacists, scientists, and teachers.

Secondly, the job you are going to do must require a NAFTA professional. Lastly, your position must be for a U.S. employer, for a position that is pre-arranged. You cannot pursue self-employment in the U.S.

There are other requirements you must meet: you must be a Canadian citizen (permanent residents are not eligible) and you must meet the qualifications of the profession.
The NAFTA agreement applies to Canadians and Mexicans. While Mexican citizens need a visa to come to the U.S. through TN NAFTA status, Canadians do not need to obtain a visa before coming to the U.S. If you still want a visa for documentation purposes, you can apply for one when you enter the U.S. Just apply at the port of entry.

But, if you are living in another country besides Canada and you want to bring your non-Canadian spouse or children with you, you will need to get a visa so that your family can eventually get TD-Visas (visas for the family of NAFTA professionals).

In order to apply, go to your consular office. If you are between the ages of 14-79, you will need to attend an interview. Make an interview appointment but be aware that there is a wait-time. In Canada the wait time usually lasts up to 2 days. They will conduct electronic fingerprinting at the interview as well so be prepared to submit that for an identity check.

Once you are in the U.S., you can stay with non-immigrant TN NAFTA status for up to 3 years. The cost of applying is $140. You can also apply for your family (spouse and children under the age of 21) to obtain TD visas. Having a TD visa will be beneficial to your family because they will be allowed to stay with you while you are in the U.S.

You will be required to submit extensive documentation with your application. Each case is different and unique. If you would like more information about your personal case, contact specialized Immigration Attorney Phillip Kim.

(559) 761-9742

ByStaff

How to Get an E-2 Visa as the Employee of a New Investor

The E-2 visa for foreign investors is designed to promote investment in U.S. companies for people not looking to immigrate permanently. If your employer is in the U.S. on an E-2 “treaty investors” visa, you may also be eligible to travel on an E-2 visa for work in a new business enterprise or U.S. investment.

Your employer must already be a foreign investor with E-2 status living on a treaty investors visa in order for you, the employee, to also qualify for the E-2 visa. If you are looking to work in the U.S. but do not qualify for the E-2 visa, you may be eligible for other visas. Further, the E-2 visa is a non-immigrant, temporary visa. If you are looking to become a permanent resident of the U.S., look into information on the green card process.

To qualify for the E-2 visa, you need to be the same nationality as the employer who holds E-2 status. Your position in the enterprise should either hold some seniority or your skills should be considered irreplaceable to the firm. Things to keep in mind about this requirement can be whether or not you will be performing a unique or individual skill in the job, whether or not these skills are found elsewhere in the U.S., and whether or not your skills will garner a compensating wage.

If you think you are eligible for the E-2 visa, you can file for status as the employee of an investor. If you are not currently in the U.S., you should contact the state department for your visa and petition for E-2 status when you enter the country.

The E-2 visa lasts for an initial period of 2 years. If your skills are still necessary and your investor employer extends his or her stay in the country to grow the investment, your E-2 employee visa can also be extended. However, you should remember that skills considered necessary at one time may not be considered so at a later time. This means that there is no guarantee that you will be able to extend your E-2 visa performing the same job duties that got you that visa originally. The E-2 visa does allow for travel abroad and you are generally granted your 2 year stay upon returning to the country.

For more information and help about getting a visa, contact Immigration Attorney Phillip Kim.

ByStaff

Learn About the E-2 Investor Visa

The Investors visa can be a very broad category. If you are interested in investing a large sum of capital in a U.S. company you, your employees, and your family may be eligible for a visa of up to 2 years. When 2 years is up, your visa is eligible to be extended if your stay remains temporary. That means that the E-2 visa is considered non-immigrant and you should intend to leave the country in the future. If you are interested in fully immigrating to invest in a U.S. company and becoming a permanent resident, look into the green card process for investors.

To be eligible for an E-2 visa, you should see a list of countries from which investors have been approved for temporary stay in the U.S. These countries are called treaty countries, and the E-2 visa is also referred to as the treaty investors visa. If you are a national from an eligible country and are currently in the U.S., you can file for E-2 status as an investor. From outside the U.S., the U.S. state department can issue you a visa and you can declare investor status when you enter the U.S.

To be an eligible investor, you should own at least half of the commercial enterprise and plan to oversee, direct, and advance its further growth. The enterprise must present a substantial investment, meaning that it can financially sustain the investor and his or her family and aims to generate new jobs, goods, or services.

However, the investment should still meet traditional business standards of being at risk for loss and aimed at making profit. The investment should meet legal requirements and the investment capital must be gotten lawfully. That means that money flowing into the enterprise cannot have involved criminal activity on any level.

Spouses and children of investors can also travel on the E-2 visa, and they are not subject to the same nationality requirements as the investor. The children must be unmarried and under the age of 21.

If you are the family member of an investor already in the U.S. and would like to change your status to the E-2 visa, you can file to change your status. Immediate family members of investors are generally given an E-2 visa for the same amount of time as the investor and can usually be similarly renewed.

For more information and help with getting a visa, contact immigration attorney Phillip Kim.

ByStaff

What is the EB-2 Status Work Visa?

Permanent workers in the U.S. under EB-2 preference demonstrate that they are educated and/or highly skilled in their professional area. With EB-2 Preference, you will be granted a visa that is eligible for permanent residence status. That means you can use your EB-2 visa to get your green card and permanently relocate to the U.S.

There are 3 major areas of eligibility for the EB-2:

  1. Your prospective job requires an advanced degree which you have. An advanced degree is defined as above a U.S. bachelors or its foreign academic equivalent. It’s also acceptable to apply with a bachelor’s (or its equivalent) and 5 years relevant professional experience doing your prospective job. If you plan to substitute work experience for an advanced degree, show that your employment was progressive and that you attained a higher level of knowledge or esteem during this time. Any academic degrees must be proven through proper documentation. Applicants in this area must also have a Labor Certification Application submitted to the U.S. Department of Labor by their prospective employer on their behalf.
  2. You have exceptional professional ability in a field of the arts, sciences, or business. Entrepreneurs are eligible to get EB-2 status. Skilled or talented applicants in this category of eligibility must also have a Labor Certification Application filed on their behalf by the prospective U.S. employer. Your application should provide documentation.
  3. Eligibility with a National Interest Waiver. The National Interest waiver takes the place of the Labor Certification requirement for the other applicants. National Interest Waiver applicants are claiming and must demonstrate that the U.S. would greatly benefit from their immigration and absorption into the U.S. economy. National Interest Waivers are self-petitioners and do not need to have prospective employment in order to apply for a permanent work visa. If you are granted a National Interest Waiver, you do not need to have labor certification. You can petition for a NIW as an entrepreneur.

If you are eligible for EB-2 status visa in the second or third eligibility category, you must meet at least 3 of the following criteria:

  • documents demonstrating educational attainment, including academic records, certificates, etc.
  • documentation of at least 10 years full-time relevant professional experience
  • a professional license or certificate qualifying you to practice your trained profession
  • evidence that your professional experience was salaried, paid work
  • commendations of skill or experience from peers, associations, or the government
  •  membership (or past membership) in professional associations in your field of work

For the EB-2 status visa, your family can also apply to travel with you as permanent residents with EB-2 status. Qualifying family are spouses and unmarried children under 18 years old.

For more information and help with getting a visa, contact immigration attorney Phillip Kim.

ByStaff

The EB-1 Visa for Permanent Workers

The EB category of visas is intended for workers wanting permanent residence in the U.S. One preference category of the EB visas is the EB-1 for applicants with extraordinary academic ability, outstanding professorial reputation, or managers and executives of multinational companies.

If you are applying for the EB-1 visa in the “extraordinary ability” category, it is not necessary to have a job offer in order to be granted your visa. However, you should have full documentation of your commendations in the arts, sciences, business or sports. In order to be eligible to get an EB-1 permanent visa with outstanding ability, you must meet at least 3 of the following criteria:

  • evidence of national or international prizes or awards
  • membership in selective or exclusive professional associations for highly qualified members
  • published material in relevant publications and well-known media
  • history or prospect of judging the work of others in your field
  • evidence of your major contributions to your field of work
  • commercial success or fame
  • history of a leading role in professional organizations
  • high salary or other significant compensation for your services in your field of work.
  • performance or participation in showcases or exhibitions

Applicants who have received a significant award, such as the Nobel Prize or Pulitzer, do not need to have meet the above criteria but must provide evidence of their winning.

Applicants applying for EB-1 preference visa for professors or researchers are required to have an offer of employment before applying for permission to immigrate with a work visa. The EB-1 for professors and researchers also requires at least 3 years of professional scholarly experience. In addition, applicants need to meet 2 of the following criteria in order to be eligible to apply:

  • receiving major prizes in the field of work
  • membership in professional associations requiring excellence and exclusivity
  • published materials by others about or in response to your work
  • authoring published works in the field
  • judging or commenting on (ex: working as a judging panelist) the work of others in the field.
  • evidence of significant contributions to your field

International executives or managers need to have been working their position for at least 3 years. In order to immigrate as a manager or executive, you need to have worked at the same company that will be employing you in the U.S. for at least the past year from abroad. You cannot have been working in that position in the U.S. prior to applying.

If you qualify for the EB-1 preference category for permanent work visas, you will need to file a petition for alien worker. If you are applying as an “extraordinary ability” applicant you can petition for your visa yourself. Professors, researchers, managers, and executives must have their U.S. based employer petition for their admittance on their behalf. This petition has a $580 filing fee and can be filed by sending your application to the U.S. Citizenship and Immigration Services lockbox in Dallas.

Once you file this petition and a visa becomes available to you, you can also file your petition for permanent residence. This form, called the “change of status” form, will update your visa to that of permanent resident and you can then get your green card.

For more information and help with getting a visa, contact immigration attorney Phillip Kim

ByStaff

The H-1B Visa: Are You Eligible?

Certain jobs are eligible for a temporary visa. The H1-B visa limits your stay in the U.S. to 3 years. If you are looking to stay in the U.S. for work long term, you should look into a visa that will transition into a green card for permanent residence. For temporary work, you might be eligible for the H1-B visa.

The H1-B has 2 levels of eligibility, some for the prospective job and others for you, the prospective worker. The job must require at least a bachelor’s degree. If the job does not require a BA or above, it should usually require a degree or entail specialized skills associated with a degree. To qualify to accept an eligible job and receive a visa to work, you should have education or training relevant to the job, a college education, or the foreign equivalent to a degree. You should also have an unrestricted license in your home country.

The H1-B visa is also meant to include researchers or development workers entering to work on a project with the U.S. Department of the Defense. Under this category, your employer does not need to apply for your visa.

Fashion models are also eligible for the H1-B visa if he or she is considered well known or highly regarded in the field.

To apply for the H1-B visa, your employer will need to apply for your certification and petition for your visa. Then, you should apply for your temporary work visa. If you are not living in the U.S., you can apply for your visa with the U.S. Department of State or with your U.S. Embassy.

There is a limit to the number of work visas given every year, so you are not guaranteed a workers visa. There may also be a waiting period for your visa to be approved even after your application has been accepted. This could mean that you will be guaranteed a visa but have to wait before there is one available for your travel.

For more help about getting a visa, contact immigration attorney Phillip Kim

ByStaff

Where to Apply For a Visa if You Have Been Removed, Deported, or Living Undocumented: The I-212 Waiver For Ineligible Immigrants

The I-212 Waiver can be used to let you re-enter the U.S. if you are currently ineligible to do so. Immigration law says that previous removals from the U.S., including at a port of entry or unlawful living in the U.S. makes visa applicants ineligible to re-enter the U.S. and ineligible to re-apply for a new immigrant (permanent, resident) visa. The I-212 can be used to waive your ineligibility regardless of previous removal history or history of illegal presence in the U.S.

If you were turned away at a U.S. port of entry but were not under formal removal proceedings, you do not need to file this form in order to re-apply for your visa. Likewise, if you have been deported previously but have waited the necessary amount of years before re-applying, you do not need to file this form. Applicants seeking non-immigrant visas, border crossing cards, T or U visas, and applicants with Temporary Protected Status (TPS) do not need to file this form unless they need special consent for readmission. You should file the I-212 if you are seeking an immigrant visa during a time of ineligibility or are currently ineligible for a non-immigrant visa.

The application for the ineligibility waiver is separate from your application for a visa and has some different procedures. Where you should file this form is different depending on your reason for ineligibility. There are 2 major groups of ineligibility covered by the I-212 waiver: previous removals and unlawful residence in the U.S. These 2 groups have different application procedures, so you should be clear on the grounds of your ineligibility before applying for readmission.

Ineligible applicants who have undergone removal proceedings should file the I-212 at the same time or after they apply for change of status to get their visa. If you are ineligible to readmission to the U.S. because you have been previously removed, you should file the I-212 before you return to the U.S. If your removal is active but pending, you should file the form before leaving the U.S. If you are still in the U.S., you should file your I-212 at the same U.S. Citizenship and Immigration Services (USCIS) office you file for change of status. Otherwise, file your I-212 at the office where your application is pending. For example, if you applied for your visa at the USCIS office in Ciudad Juarez and are currently residing outside the U.S., you should submit your waiver to the Ciudad Juarez office as well.

If you are currently in removal proceedings, file your waiver with the Executive Office of Immigration Review (EOIR). The immigration court processing your removal will tell you which office to submit your I-212 waiver to and give you further or unique instructions for filing. You can file the I-212 if you are currently undergoing active removal.

If you have previously lived in the U.S. unlawfully, you must depart the U.S. before filing for readmission. There will most likely be a 10 year waiting period before you are granted readmission under the I-212 waiver.

Where you should file the I-212 visa is different. For applicants needing consent for readmission but who are applying for a non-immigrant visa, you should file your waiver with an office of the U.S. consulate. Similarly, you should file with the U.S. consulate if you are applying for an immigrant visa and are required to file the I-601 waiver at the time of your visa application. If you are not required to get a visa before entering the U.S. as a non-immigrant, you can get your border crossing card and file your waiver at the U.S. Customs and Border Patrol office at the site of entry processing your admission.

For more information and help with filing for a visa, contact immigration attorney Phillip Kim.

ByStaff

Want to Come to the U.S. as a Specialized Employee? If Your Company Has a Relationship with a U.S. Office, You May Qualify for L-1B Status!

L-1B classification is for intracompany employees that are transferred to the U.S. for specialized knowledge of a company. L-1B status is used by specialized knowledge employees that are transferred from a company in a foreign country to an affiliated company in the U.S. If an office is not open in the U.S., employees who have specialized knowledge about the company can be transferred to the U.S. to set up an office.

Are you eligible? For starters, the U.S. employer must meet certain qualifications. The employer must have a relationship with the foreign company. This relationship can be one of the following: branch or parent companies (the foreign company created the U.S. office or vice versa), sister companies, or affiliated organizations. Two distinct companies that have nothing to do with each other will not qualify. But a company that spread internationally or is related to another company is qualified.

Also, the employer must be doing business in the U.S. and in at least 1 other country. This business can be direct or through the use of an affiliate business (sort of like a middle-man) while the employee stays in the U.S. “Doing business” means actively producing or supplying good and services. Just the presence of employees or offices abroad does not mean that they are “doing business”.

As an employee, you must meet certain requirements as well. Before coming to the U.S., it must be true that you worked for one whole year, nonstop, in the affiliate company abroad. Nonstop means that you did not take prolonged breaks during that year. For example, if you work at “Company 1” for 5 months, and then work for “Company 2” for a couple months and eventually come back to “Company 1” for the last 7 months does not mean you qualify. The job had to have lasted for one whole, complete year. Certain breaks like vacation might be acceptable. Speak with an attorney for more specific information about your case. Also, the year of employment must have been done within 3 years before coming to the U.S.

If you are the employee, you must also plan to come to the U.S. to provide services to the company or affiliate company. The services you can provide must depend on your specialized knowledge.

What is Specialized Knowledge? As the employee, your knowledge must consist of knowing information about the company you plan to work for. You must have extensive knowledge of the organization’s services or products provided, research or equipment that is used by the company, or the organization’s special techniques or management, AND how this company information is applied to the international market. Or you must have expertise in the company’s procedures or what actions the company takes to reach certain goals. Overall, specialized knowledge is not common in the industry you belong to. You have to be a notch above “skilled”. You need to know more than what the company’s interests are.

If you are sent to set up a new office, you must provide evidence of the area where the office will be located. The area must be sufficiently reserved by you or your company. The employer must be financially able to pay you and start a business.

If you come to set up a new office, you can stay for an initial period of 1 year. If you come as a professional employee, you can stay for 3 years. For both groups, the stay can be extended by 2 years until you reach the maximum of 5 years.

Your family can come to the U.S. too! Your spouse and unmarried children under 21 years of age are eligible for L-2 status. If approved, they can stay for as long as you do. Is your family already here? They can apply for L-2 status with Form I-765 with a fee. Your spouse can apply for and get work authorization while they stay here.

***Don’t meet the criteria of affiliated company? You might still be eligible: If you will be working at an unaffiliated company, your employer has to show…
That you will not be supervised by the unaffiliated organization employer AND
That you will not be considered “labor for hire” for the U.S. company or organization

This is not a full article on L-1B classification. There are a lot of other facts to consider and sometimes exceptions can be made to individual cases. For more information about L-1B status and whether or not you are eligible, contact specialized Immigration Lawyer Phillip Kim today!