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How to Apply for a Work Permit under New Immigration Law

The Obama Administration’s latest new immigration law could benefit many immigrants.

Effective June 15th, 2012, President Obama’s new immigration law will do two things for young immigrants: prevent deportation and grant work permits.

The Obama Administration decided it was time to address the needs of thousands of struggling, young immigrants. Many of these immigrants were brought the United States at a young age and have significant ties to this country – some have lived here since they were children and only speak English. The new law is meant to provide these immigrants with a solution that would prevent them from being deported and would also allow them to work legally in the U.S.

The law is tailored for immigrants who are currently under the age of 30. The immigrant must prove that he is not a threat to the country. Good moral character will also be taken into account. This means that if the immigrant has a history of crime or criminal offenses, he may be denied under this new law.

The new law is meant for young immigrants who came to the U.S. under the age of 16. As minors, these immigrants had no choice in coming to this country. Now that they are here, they should be allowed to stay and get work legally.

Finally, the last requirements under this law are that the immigrant is currently in school or has graduated from high school. If you have received some form of a G.E.D., then that would be acceptable as well. You must also have been living in the U.S. since 2007. If you left at any time within the past 5 years or are currently NOT in the U.S., then you might not be eligible to apply under this law.

Even though you meet these minimum requirements, you may not be eligible for the benefits of this new law. For example, documents must be submitted as proof or evidence that you meet the requirements. If you fail to provide the government with proper documents, your case may be denied.

Furthermore, there may be more requirements for specific cases. A certain criminal offense might still mean that you are eligible for some protection under this law, while other offenses will bar you from benefits altogether.

For these reasons, it is important to discuss your options with a specialized immigration lawyer. Contact Attorney Phillip Kim for more information about Obama’s new law and how it will affect you.

Phillip Kim, esq.
Phillip Kim Law Center

Fresno Office
(559) 448-8500


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


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


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.


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.


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.


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


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.


Good Moral Character: Does it Apply to You?

If you have been researching immigration laws, you might have come across the terms “good moral character”. Many avenues of applying for citizenship require that the applicant be of good moral character. In fact, the naturalization process requires this of all applicants. The concept of good character is ambiguous and confusing for many people who are hoping to become U.S. citizens. At the Law Offices of Phillip Kim, we have had many clients approach us with questions about their moral character and whether it will prevent them from becoming citizens. We’ve written this article to clear the air on what it means to have good moral character.

First and foremost, U.S. Citizenship and Immigration Services (USCIS) will look at your criminal record. Certain crimes will result in barring you from becoming a U.S. citizen. These crimes include murder and aggravated felonies. Other less serious offenses might result in a short-term ban. During this time, the applicant will not be eligible for citizenship. Form N-400 is the form used to apply for U.S. citizenship. The form asks many questions about your criminal background. We urge you to respond truthfully and do not omit any criminal charges that were filed against you, even if they are no longer on record or expunged. If USCIS finds out about an issue from your past, you can be denied. Even minor events should be reported.

If you fall into the category of those who have a criminal record, you will need to send a copy of all documents pertaining to your case. For most, these documents include arrest warrants, reports, and court documents. You may also want to consider sending statements or examples of evidence that show your side of the story.

Some clients worry about traffic violations. You do not need to send documents for a traffic incident unless alcohol or drugs were involved. If a traffic violation resulted in an arrest, you will not need to send documents if the penalty involved points on your driver’s license or you were only forced to pay a fine less than $500.

An important note to keep in mind is that some serious crimes come with equally serious consequences. You can be removed (deported) for those crimes. In these cases, USCIS suggests that you seek the assistance of an immigration attorney.

While your criminal record is the primary tool used to determine whether or not you have good moral character, another factor will also jeopardize your plan of becoming a U.S. citizen: lying during interviews. Even if you get away with lying during an interview, if USCIS finds out that you lied later on, your citizenship can be taken away.

In addition, certain specific acts may classify you as someone who does not have good moral character. These include but are not limited to:

  • Failure to pay child support
  • Illegal activities such as prostitution or polygamy
  • Crimes that involve fraud
  • Crimes against the government
  • Being in jail or another institution for 180 days or more during the past 5 years (3 years if you are applying through marriage with a U.S. citizen)

For more information about good moral character, contact Attorney Phillip Kim.