VETERINARIAN WORKING IN AMERICA IN H-1B VISA STATUS

by Danielle Nelisse,   Senior Immigration Attorney

The H1B visa is a nonimmigrant work visa classification used by professional foreign nationals who will be employed temporarily by a U.S. employer in either a specialty occupation or as a fashion model.

A foreign national can be in H-1B visa status for a maximum period of six years at a time and the H1B visa is generally granted in two increments of three years.

Every year the American government only issues a certain number of H-1B visas and there never seem to be enough to go around.

H-1B visa applications are normally prepared by experienced American immigration attorneys for American employers. Current law limits the number of H1B visas to 85,000 foreign nationals each year. No one profession, such as veterinarians, are automatically exempt from the numerical cap.  However, the first 20,000 H1B visas are issued to foreign nationals in all professions who obtained their Masters Degree in America.  H1B visas issued to advanced degree foreign nationals beyond the first 20,000 are then counted against a  65,000 cap.   Degrees in any specialty are acceptable for purposes of the 20,000 Master cap eligibility.

What does this mean for those who want a three year H-1B visa granted during FY 2013 (October 1, 2012 to September 30, 2013)?

The USCIS will begin accepting H-1B Visa petitions for FY 2013 on April 1, 2012 (6 months prior to October 1, 2012) from U.S. employers who want foreign professionals to start work on October 1, 2012.

Where can I research H-1B visa jobs offered by American employers?

There are many websites that offer this service, and one is called  H-1Base.

Are there any exceptions to the H-1B visa cap?

• H1B visa renewals and H1B visa extensions of stay do not count towards the annual numerical cap.
• H1B nonimmigrants who work at (but not necessarily for) universities and non-profit research facilities may also excluded from the numerical cap.
• Transfers of H1B visas among U.S. employers only count against the cap when the foreign national is changing jobs from a U.S. employer that is exempt from the limits (academia or research) to one that is not exempt (for-profit).

Although a review of past years (FY2004-FY2009) shows a rapid depletion of the H1B quota every year, FY2008 and FY2009 saw the entire 65,000 H1B visa quota met on the very first day of filing. The annual cap for FY 2008 was exceeded on the first day of filing. A random lottery was held, consisting of cases filed on the first two days, as required by regulation. The separate H-1B visa exemption quota of 20,000 for U.S. advanced-degree holders lasted only about a month after they first became available for FY2008.

In response to that situation, the procedures changed for the H-1B petitions submitted for FY 2009, as the government decided that there would be a lottery of the cases filed on the first five days of filing, if the cap was reached during any of those five days. The cap was again met on the first day. FY 2009 also saw the entire 20,000 U.S. advanced-degree H1B quota exemptions exhausted in one day. The government announced that they received about 163,000 H1B visa applications that year, and approximately 31,200 of those were for the Masters Degree category.

Advanced degree holders have a better chance of being selected in the H1B lottery than individuals who are seeking a regular H1B visa because the government first holds the lottery for the 20,000 advanced degree visas; applications that are not drawn as part of that selection process are then added to the pool of applications for the 65,000 regular H1B visas, giving the first-time advanced degree losers a second shot at getting an H1B visa.

For FY 2011, the H1B visas lasted longer, probably due to the sluggish American economy.  It wasn’t until January 26, 2011 that the USCIS received sufficient petitions to reach the numerical cap for the 2011 fiscal year (which extended from October 1, 2010 to September 30, 2011). For FY 2012, the H-1B visas lasted until November 22, 2011.

As a reminder, if a professional needs a state license to work in the U.S. (such as a veterinary license to practice medicine), usually the license needs to be submitted along with the H-1B petition.

Questions?  Email danielle@immigrationworkvisa.com

by Danielle Nelisse, Senior Immigration Attorney

Touring Jamaica on Vacation

Because the majority of foreign nationals change their visa category from non-immigrant status to “adjustee pending” starting the day the AOS Package was received by the USCIS, they are no longer allowed to travel abroad using their previous non-immigrant visa.  Nor are they allowed to travel while in their new “adjustee pending” status until they receive their Advance Parole Travel Authorization (approval of Form I-131) in the mail.

It generally takes 60-90 days to get the Advance Parole Travel Authorization in the mail after submitting the AOS package to the USCIS to the Chicago USCIS lockbox office. Non-refundable plane tickets should not be purchased during the Adjustment of Status processing period just to be safe.  Even if you have received permission to travel, your green card interview may be scheduled early (it is happening quite frequently lately) and it is better to postpone your trip than to try to reschedule the interview.

In most cases (except H-1B non-immigrant visa cases) if you travel abroad after you have submitted your AOS package but before you receive your Advance Parole Travel Authorization permit, the USCIS may consider your AOS package abandoned and you may be stranded outside the U.S. while your case is processed at a U.S. Consulate.

If you believe you might be subject to the 3/10 year bar for any reason but are issued an approved Advance Parole Travel Authorization, do not use it – the 3/10 year bars override the power of an Advance Parole Travel Authorization when trying to re-enter the U.S.

HELPFUL TIP: For most AOS applicants, the one year travel permit is now issued as in combination with the EAD (I-765 Employment Authorization) Card.  There is a regulation that states that the EAD card should be issued within 90 days (there is no similar regulation for the Advance Parole).  There is also a USCIS memo that states that if the EAD card has been pending more than 75 days and is causing a hardship, the applicant may request that the EAD card (which also happens to include the Advance Parole information on it) be expedited.

Questions?  Email danielle@immigrationworkvisa.com

WORKING ABROAD IN DUBAI FOR AN AMERICAN COMPANY

January 10, 2012

Ordinarily, in order to be naturalized as a United States citizen, a green card holder is required (in part) to “reside continuously” in the USA for at least 5 years prior to filing their N400 naturalization application.  In order to prove that they have “resided continuously in the USA for 5 years, the green card holder must prove they were physically present in the USA for at least one half of the 5 years.

For spouses of U.S. citizens who have a marriage green card who are still married, they have to prove they were physically present in the USA for at least one half of 3 years of “continuous residence.”

There is an important exception to the 3-5 year continuity of residence rules when applying for citizenship . Section 316(b) states that certain periods of absence from the USA will not break the continuity of residence IF the green card holder (A) lived and was physically present in the USA for 1 year after getting their green card; AND (B) is employed abroad by certain American employers as well as some other entities. For spouses of U.S. citizens seeking USA citizenship, they do not have to prove they were physically present in the USA for one year (see below).

The “continuity of residence” rule requires that the green card holder, in general, ”live continuously in the USA,” which is defined as not being gone for periods over 6-12 months (there are different rules for each of those time periods) during any one trip abroad.

How Do I Prove My Employer is an “American” Company?

Sometimes it is difficult for an applicant or their immigration attorney to prove that an American employer is really owned by Americans.  What if there is an America company, incorporated in one of the 50 American states, and it owns another company abroad?  It can be quite difficult to identify the ownership interests (and nationalities) of modern, publicly held corporations that have thousands of stockholders and capital stock that are traded on a daily basis on stock markets.

On October 20, 2010 a rule was re-established regarding the “continuous residence” required by the American naturalization rules for citizenship. The new rule is that when an applicant’s employer is a publicly held corporation that is incorporated in the USA and trades its stock exclusively on USA stock markets, the employer is deemed an “American firm or corporation.”  See Matter of Chawathe, 25 I & N Dec. 369 (AAO) 2010.

The USA public stockmarkets include the NYSE (New York Stock Exchange), NASDAQ (Nasdaq Stock Market), the AMEX aka NYSE Amex Equities (American Stock Exchange) the PHLX (Philadelphia Stock Exchange), the CHX (Chicago Stock Exchange, the BSE (Boston Stock Exchange and the NSX (National Stock Exchange).

An SEC Form 10-K is the name of a report that publicly held American corporations must file with the SEC (Securities and Exchange Commission) on an annual basis and the report provides a comprehensive overview of a company’s business.  The SEC Form 10-K report has been accepted by immigration officials as credible proof that a company is both incorporated in the United States and that it is a publicly held corporation whose stock is exclusively sold on an American stock exchange.

What If I Work for a Foreign Subsidiary of an American Company?

Under INA §316(b), the naturalization applicant must either prove that she or he is employed by either an American company, OR “a subsidiary thereof more than 50 % of whose stock is owned by an American company.” See Matter of Warrach, 17 I&N Dec. 285, 286-87.

Most often the SEC Form 10-K will include information about the foreign subsidiary.  It is best if the SEC Form 10-K has the words “wholly owned subsidiary” in it when describing ownership of the subsidiary.  Often a letter from management of the American company stating that the subsidiary is owned by the American company and that the applicant will be paid by the American company while working abroad is very helpful.  Any other evidence that the foreign company is a subsidiary of the American company with at least 50% of its stock owned by the American company is a plus.

Does it Matter What Type of American Firm I Work For Abroad?

Yes, the American company must be a U.S. firm engaged in the development of foreign trade and commercie, or a public international organization of which the U.S. is a member. The American company or organization what employs the green card holder must file Form N-470 (available under “Forms” on www.uscis.gov) within a certain timeframe, and when it is approved it will “preserve” the green card holder employee’s “residency” for purposes of future naturalization.

How Long Do I have to Live in the USA After I Get LPR Status?

For the employee of the American firm or organization, one year of uninterrupted physical presence is required after getting LPR status, and that rule is strictly enforced.   Even a trip to Canada or Mexico for a few hours or a single day disrupts the one year of uninterrupted physical presence. See Matter of Copeland, 19 I&N Dec. 788.

What about my Spouse?

Pursuant to 8 U.S.C. §1430(b), the physical presence and residence requirements are waived in limited circumstances for applicants whose U.S. citizen spouse is employed abroad by the U.S. government, a public international organization in which the U.S. participates by treaty or statute, an American institution of research recognized by the the Dept. of Homeland Security, a religious organization ministering or doing missionary work, or an American firm engaged in whole or in part in the development of foreign trade and U.S. commerce.

Therefore, the spouse of a U.S. citizen who is eligible for naturalization processing under 316(b) does not have to prove they were physically present in the USA for one year.

Questions? Email danielle@immigrationworkvisa.com

Meeting Love of Life on Vacation

America ‘s share of international marriages is up; 4.6% of Americans were married to a foreigner in 2010, almost double from 2.4% in 1970. International marriages reflect increased globalization as people go on holiday, study abroad, or migrate to a different country to live and work.

We’ve all heard about getting a “green card” but the average person doesn’t really know how to do it.  Unfortunately, the American government has not yet figured out how to explain the process in an easy to follow format.  I personally think doing your taxes yourself is easier, even when you own property or your a business.

Worse yet, the government agency that handles the processing or marriage green cards is disorganized and required to deport the people who fill out the forms incorrectly.  How can you trust them to help you when their job is to deport the people who make mistakes on their green card applications? Remember when the IRS was told to be more user friendly?  We keep waiting for the same directive to be given to the USCIS.

Why hire an immigration attorney to handle your marriage green card?

When a foreign national is already in the USA  and marries a U.S. citizen, the process of switching them from their temporary visa to a permanent green card is called “adjustment of status” or AOS for short.  The American immigration laws concerning AOS is highly complex, contained in different statutes, policy memos and court cases,  and is constantly changing.  The key to smooth AOS processing involves constant monitoring of the daily changes in immigration law.  The average U.S. citizen already has a full time job and doesn’t have time to keep checking the changes in immigration law on a daily basis.

When a person applies for a marriage green card, it can involve up to 10 different government forms.  There doesn’t seem to be one individual instruction booklet describing what combination of the forms are required for each particular case that is kept up to date.  Over the years we have learned what forms are needed for each case and what documents we are supposed to attach to each of the forms.  We have learned when to submit originals and when copies are o.k.  just from doing it hundreds of times in all types of situations.

Couple Traveling the USA

Much of the AOS application preparation requires clients to give us copies of documents and involves the exchange of information between the client and attorney.  After years of experience we have developed a system that optimizes our legal expertise and provides our clients with an unmatched personalized experience, customized to their needs.

Here are just a few of the questions we answer for clients:

• My parents’ names are missing from my birth certificate, what do I do?
• I was born in one country, but am a citizen of another country, what birth certificate do I submit?
• Do I need to submit copies of all my passports?
• I lost my I-94 Card proving my legal entry to the U.S., what do I do?
• My U.S. citizen husband (and financial sponsor) just lost his job, what do I do?
• I want to change my name so how do we fill out the forms?
• When can I get a social security card?
• When can I get a driver’s license?
• How can I get a bank account without a social security number?
• When can I travel outside the USA?
• When do I have permission to work?
• Does the USCIS have permission to access my Facebook?
• Do I need to include my other children in the applications?
• Does the USCIS share information with the IRS?
• What family members may I bring after I get my green card?
• When can I apply for U.S. Citizenship?
• What does a 2 year conditional green card mean?
• How long do we need to stay in the USA each year after I get the green card?
• My mom is very ill, can I leave in the middle of processing my green card?

Why do I need an immigration attorney to represent me with the USCIS for the marriage green card?

The USCIS in particular is a government agency that is not run as well as the IRS or other government agencies.  For example, they refuse to give out their phone numbers.  They refuse to allow customers to call and talk to someone about their case.  USCIS Customer service representatives answer a national 1-800 number and give information they read off of cue cards. No one seems to have the authority to walk over to your actual case file, pick it up and look at it, and answer your questions about your case.  In addition, the information you give them can be used against you and you won’t even know it.

We subscribe to expensive immigration monitoring services for attorneys that send us daily emails concerning the ever changing marriage green card requirements and ways to communicate with the USCIS.  We also monitor international political events that impact the shifting of governmental staff away from AOS processing so that we can accurately predict delays. We have also figured out how to be creative in solving client problems caused by a government agency that won’t even give out its phone numbers.

How should a marriage green card client be treated by their immigration attorney?

We like to be on a first name basis with our clients and be available to answer client questions throughout the process. We answer phone calls or emails within 24 hours whenever possible. We have handled and overseen all legal aspects of the AOS process for many clients and are proficient at fast and accurate communication between us and our clients. We can eliminate approximately 98% of delays because AOS processing is what we do best and one of our specialties.

What are the processing steps for obtaining a marriage green card?

The AOS (Adjustment of Status) Process

The AOS process is made up of ten phases:

1. Clients Gather Documents and Provide to Attorney
2. Attorney Prepares AOS Applications for Client Review and Client Signatures
3. Attorney Packages and Submits AOS Applications to USCIS; Attorney is Registered as Official “Attorney of Record” and is Allowed to Intervene on Behalf of Client
4. Attorney and Client Receive USCIS Receipts Acknowledging Successful Submission and Reflecting New Legal Status (“Adjustee Pending”)
5. Attorney and Client Receives Biometrics Appointment Letter and Provides Fingerprints
6. Attorney + Client Receive Temporary Work/Travel Permits (can now apply for Social Security Number and Driver’s License)
7. Attorney + Client Receive USCIS AOS (Green Card) Interview Notice
8. Attorney Conducts Telephonic Practice Green Card AOS Interview with Clients
9. USCIS Conducts Actual Green Card AOS Interview
10. Client Receives either 2 Year “Conditional” Green Card or 10 Year Green Card in Mail

Will the immigration attorney advise me on travel outside the USA?

Yes.  In most cases, if the green card applicant exits the U.S. after the green card application is submitted but before obtaining the green card, the green card application will be considered “abandoned.”  However, a special one year travel permit (called “advance parole”) allows a person to travel abroad while they are waiting for their green card interview to be scheduled.

How can the immigration attorney help with the marriage green card interview?

I personally conduct an extensive practice green card interview so that you pass the marriage green card interview on the first try.  I don’t officially close your case until your green card interview is scheduled and a green card is granted that has all of your correct information on it.

Romantic Relaxing Dinner

The marriage green card interview (also known as “lawful permanent residence” and “adjustment of status” interview) usually takes place about 6 months after the adjustment of status applications are submitted – it depends where you live in the U.S.  At the conclusion of the 10-20 minute green card interview (which is held at the USCIS District Office closest to your residence) if all of your paperwork is in order and you have answered the questions correctly, the USCIS officer has the power to grant green card status immediately. The actual card arrives in the mail about 2-3 weeks after the interview.

Why is the AOS process often delayed?

I think that the majority of AOS cases are delayed due to the lack of accurate information available to the average U.S. citizen trying to complete the paperwork on their own.  The USCIS website is unorganized, out of date, and difficult to navigate.  It is hard for the USCIS to cover every single situation because there are so many immigration rules that contradict each other.  The USCIS staff who answer the national 1-800 Customer Service phones are not trained beyond reading the answers off the USCIS website or cue cards.  Information shared by applicants on internet blog sites is often contradictory, out of date, or simply erroneous.  Frankly, I don’t know how anyone does it on their own without hours of research!

Mistakes are often made by USCIS staff, and there are no direct phone numbers to try and fix the problem. Unrepresented applicants have told us about various problems they have had with the USCIS, like failing to update their new address properly, causing the USCIS interview notices to be sent back to the USCIS as undeliverable.  In that case, their marriage green card cases were considered abandoned and closed, triggering deportation proceedings.  In other instances, applicants were unaware of changes in USCIS regulations and sent incomplete AOS applications to the USCIS – which were either rejected outright, or delayed for two to six months while sitting in the huge USCIS mailrooms.

As we all know, the United States is constantly involved in military action abroad.  Every time the U.S. government shifts its military around and makes national security decisions, USCIS personnel are also shifted to accommodate national security needs, slowing down AOS processing.

Finally, the USCIS provides unclear direction concerning what documents to bring to the AOS interview.  If only one document is missing at the interview, the process can be delayed for 2-6 months.

What are the expectations of the immigration attorney?      

We charge a flat legal fee of $2,500 to provide personalized AOS processing legal services in a marriage green card case (one that has no extra complications such as criminal records, visa violations, etc.) .  We only take a limited number of cases per month because I personally oversee each case, and feel it is important for clients to be able to have constant phone and email access to me.  After preparing the adjustment of status package for the USCIS, we make a complete copy of the applications and supporting documents for our files, and another copy for your files.

Meeting "the one" Later in Life

We utilize overnight mail and do not charge extra for express mail, long distance phone calls or copies. We track your case while the USCIS is processing it to make sure the work and travel permits are issued and to answer all of your questions along the way.  You always know what is going on and what is going to happen next and approximately how long it may take.  Also, while we are waiting for the green card interview to be scheduled, I’d like to know if you move, so that I can properly inform the USCIS.  I let you know ahead of time what documents to collect for the green card interview so that you have plenty of time to prepare. I personally thoroughly prepare both of you for the marriage green card interview.

Husbands and wives have found that it helps out their new marital relationship tremendously to have an immigration attorney that they both can call or email with questions during the entire process.  Imagine the lessened anxiety level when the burden of handling the green card paperwork and processing is on someone else’s shoulders!

What do previous clients have to say? Take a look.

Email danielle@immigrationworkvisa.com or call (619) 235-8811 or (877) 884-6644 for a free phone consultation.

Calling the USCIS (Again)

Immigrating to the USA is an important life experience but moving to a new country can be stressful.  Many husbands of foreign wives turn to an American immigration lawyer to help them with the immigration process. The assistance of a kind and competent immigration lawyer can really help a new marriage go well.

Why Can’t I Rely on American Government Websites for Reliable Immigration Information?

The USCIS government websites are getting better and better.  However, there still are problems:

• Government immigration agencies are not responsible or liable when they give you the wrong information because their websites are outdated.  For example, if you rely on the USCIS government website and send the wrong forms to the wrong place with the wrong amount of money it may be rejected, you may miss a deadline, and/or you may not get your government fee money refunded. The USCIS considers the forms you submit as your “legal case” so if they are submitted improperly it still may count against you.

• Government immigration agencies are predisposed to keep foreign people out of the USA, especially due to the high unemployment rate for American citizens.  Oftentimes these sites only give you a piece of the information, such as “if you have a green card you can stay outside the USA for up to 1 year.”  They neglect to tell the caller the full story, such as (a) If you try to return to the USA 1 day late due to a plane delay your green card is no longer valid to re-entry the USA; or (b) If you are outside the USA over 180 days your application for American citizenship may be seriously delayed.

• Government immigration agency 1-800 Customer Service Representatives are not immigration lawyers, immigration officers, or adequately trained in immigration law. They read their answers off of a cue card.  There is no way for them to answer phones 8 hours a day and also keep up with the daily changes in immigration law unless they volunteer to do so on their time off, which most don’t.  For example, a Customer Service Representative told my client (before he hired me) that his certified letter sent to the USCIS was sufficient to request a new date for his marriage green card interview, and then his wife’s case was closed and she was put in deportation proceedings. You can imagine the arguments that took place between husband and wife because he had not wanted to hire an immigration attorney and she did.  It took a lot of work for us to get the USCIS to admit to their mistake and reopen her case, but we did it.

• Government agency personnel, whether they are the USCIS Customer Service Representatives or the USCIS INFOPASS District Office Immigration Officers, do not have the time to (a) find your wife’s case file; or, (b) read her entire immigration history, which is necessary to give you the correct advice on how to proceed. Let’s say your wife entered the USA with a B-2 Tourist Visa and you are seeking to adjust (get a green card) her status in the USA based on her marriage to you, a U.S. citizen. The issue of “intent” will likely be an issue in her case, but the Customer Service Representative has no obligation to tell you (if they even know). If you file her adjustment case on your own, and the USCIS determines that her “intent” was to enter the USA as a B-2 Tourist and adjust status through her spouse in the USA, the USCIS can claim that she committed visa fraud and deny her a green card on that basis and you will never see it coming.  Had you known about that rule, there are easy ways to fix that situation, but the USCIS has no obligation to tell you before you make the mistakes.

Filling Out USCIS Forms for New Wife's Green Card

It takes a lot of time to figure out which forms to file, what documents to attach to the forms, where to send the forms, and how much money to send with the forms.  The immigration governmental agency websites have out of date and confusing instructions that go with the forms and a lack of inside information could lead to mistakes that can be costly in terms of time and money. If you have to hire an immigration lawyer later, your mistakes may limit your options and immigration lawyers are likely to charge more to clean up the mess.

A good immigration lawyer should be able to give you an honest and thorough assessment of your case and be able to explain the options that are available to you based on not only the current law, but changes that are in the legislative and judicial pipeline at any given time.  The immigration lawyer can then work with you to prepare your case and represent you before the USCIS.

The immigration lawyer can explain to the USCIS government agency why your case meets the requirements of the law and if problems arise, the lawyer often has additional resources available to help resolve the issues or can prepare your case for an appeal.  I cannot tell you how many husbands have thanked me for repeatedly explaining everything to their wives and emailing them often about the progress of their case, thus making their lives much easier and less stressful.  I personally have gone through the adjustment of status process (my husband is from Holland) so I know first hand the anxiety that does with trusting your future to a governmental agency!

Many immigration lawyers specialize in a certain type of immigration law.  The subspecialties are employment, adjustment of status through family, asylum, deportation, business, investment and citizenship. It is important to question the immigration lawyer about whether they have a strong background in your particular type of case. We have done hundreds of these adjustment of status cases over the last 12 years for many husbands and wives.

The relationship with your immigration lawyer is important.  Finding a lawyer who really seems to care about your case results in a trusting relationship and a good overall experience. The immigration lawyer normally works for both the husband and the wife in a marriage green card case, so that both of them always know what’s going on in the case.

American immigration lawyers have clients all over the USA and often handle cases completely through fax, phone, mail, and email. We are in San Diego, California but currently we have clients in Florida, Washington, Alaska, Arizona, Texas, Kentucky, Michigan, California and New York.  We also represent some family members who are still in their countries, such as Brazil, Canada, France, Germany, Mexico and South Africa.

Figuring Out USCIS Instructions for Wife's Green Card

There are actually immigration lawyers out there who swear they have never lost a case even after a lengthy career. Be nervous about immigration lawyers who promise 100% success as we are not allowed to do that.  An immigration lawyer who honestly presents the risks is worth a lot more. Likewise, be careful of immigration attorneys who claim to have special influence with the USCIS government agencies – that is out of the ordinary.

Due to the economy, some people will not have the money to be able to hire an immigration lawyer to handle the full adjustment of status process due to the costs.  More and more lawyers are offering services to help with a part of the adjustment process, such as reviewing the paperwork before you submit it, or preparing you for the green card interview. This means that instead of handling a case from beginning to end, the immigration lawyer will prepare only parts of the case or provide the client with the immigration lawyer’s expertise.

For example, perhaps you want to submit your green card application yourself, but would like to consult with an attorney and have that attorney review and critique your adjustment application, that is possible.  We are able to quote you a lower price to review your adjustment package before submission to Chicago, or to prepare you for your marriage green card interview.

The risk involved in not hiring an immigration attorney to handle an adjustment of status case is simple — you will go through the process without the inside information regarding what is required to successfully complete your case in a timely manner. This means that you will probably have a higher likelihood of your case being rejected or delayed at some stage.

American immigration law is much more than just filling out forms. There’s a lot of information that the forms do not give you. Your immigration lawyer, whether in San Diego, CA or Dallas, TX, identifies all the red flags in your case (if there are any) and walks you through the process of getting beyond them. They are also there for your support and piece-of-mind and to answer all the questions you and your wife will have along the way.

What do previous clients have to say? Take a look.

Call or email Immigration Attorney Danielle Nelisse in sunny San Diego, California to find out how she can help you and your new wife with her adjustment of status:

Email danielle@immigrationworkvisa.com or call (619) 235-8811 or (877) 884-6644 for a free phone consultation.

Newlyweds Enjoying Coffee

For many foreign nationals, while their American green card is pending they are considered to be present in the USA legally as a “pending adjustee” or as an individual whose “adjustment of status (AOS) is pending.”  Another name for them is an individual who is “prucol.”

If you’d like know more about the law, read further.

What is ”PRUCOL” (Permanently Residing Under Color of Law)?

PRUCOL was established by American court judges to address situations in which the federal government has permitted the immigrant to remain in the U.S. but there is no category or name for the immigrant’s status.

These are commonly foreign nationals who:

• Intend to reside indefinitely in the U.S.; and,
• The United States Citizenship and Immigration Services or USCIS (formerly the Immigration and Naturalization Service or INS) knows they are residing in the U.S. and is not taking steps to enforce their departure.

What does “Permanently Residing in the USA under Color of Law” Mean?

The US Congress has enacted a complex set of statutes on immigration and has created the USCIS as an agency with broad powers, both regulatory and adjudicatory.

Under the Immigration and Nationality Act and its implementing regulations, the USCIS determines the status of each alien in the United States.  The term “color of law” is not clearly defined in the Immigration and Nationality Act.  However, the USA Supreme Court Judges have confirmed that the USCIS has authority in alien matters. Therefore, in making a determination about an alien’s status, the USCIS is acting “under color of law.”

What is an Important Immigration Case Concerning “Color of Law?”

 A case which illustrates this point is Holley v. Lavine. In Holley v. Lavine,* the USCIS

Relaxing at the Beach

sent a letter informing a Canadian citizen with six United States citizen children that she would not be deported at least until her children were grown. This discretionary act by the USCIS was pursuant to its “color of law” authority.

For the USCIS to authorize an alien’s legal presence under “color of law,” the USCIS must (1) know of the alien’s presence; and, (2) must provide the alien with official assurance that enforcement of deportation is not planned.

In other words, applicants for adjustment of status to that of a lawful permanent resident (green card holder) are considered PRUCOL (allowed to remain in the USA) so long as their I-485 application is pending, no matter how long it takes.  Their status ends if the I-485 application is denied or if the USCIS otherwise indicates that s/he is not permitted to remain in the USA and/or that his or her departure is being enforced.

What Documents Prove the USCIS Should Not Initiate Deportation of a Person While their Green Card is Pending?

In general, official USCIS receipts showing that the I-485 (application for adjustment of status) and I-765 (application for work authorization) applications are pending suffice as official assurance that enforcement of deportation is not planned.

*Holley v. Lavine, 553 F.2d 845 (2d Cir. 1977), cert. denied, 435 U.S. 947, 98 S. Ct. 1532, 55 L. Ed. 2d 545 (1978).

Need help with your adjustment of status (green card ) applications?  

Email: danielle@immigrationworkvisa.com

Wedding Dress

Sometimes Americans meet a foreigner who is on vacation in the USA on a 6 month B2 tourist visa.  They start dating and fall in love and want to get married. They want to go through the adjustment of status green card processing so they can live together permanently.  They need to remember that when a USCIS Officer makes a decision about granting someone like a B2 visa holder a green card, they have some discretion, because the B2 visa is considered a nonimmigrant (temporary) visa.

The thing about adjustment of status (AOS) is that the decision to grant U.S. permanent residence (green card) made by the USCIS Officer is “discretionary,”  not mandatory. Therefore, the USCIS Officers do not have to grant the change from B-2 Tourist visa to green card holder.  It is possible for a person who is technically eligible for immigrant status (green card) to be denied in the Officer’s “exercise of discretion.”

The most common instances of such discretionary denials involve cases where the applicant abused the nonimmigrant process within the first 30 days of entry.

How can a B2 visa holder abuse the nonimmigrant process? If a person enters the

Wedding Rings

United States in certain nonimmigrant (temporary) visa categories with the obvious intention of applying for immigrant (permanent green card) status, their I-485 adjustment of status (AOS) application can be denied by the USCIS in the exercise of discretion.

People in certain nonimmigrant visa categories are not supposed to intend to acquire permanent status.  They are B-1/B-2 Visitors, F-1 Students, J-1 Exchange Visitors, Q Cultural Exchange Visitors, TN Visitors or Visa Waiver Visitors.

Applicants for AOS must not only prove to the USCIS that they have been “in status” at all times that they have been in the United States (since 1987), but also that they have not acted in bad faith after their latest entry.  The USCIS has adopted the “30/60 Rule” used by the Dept. of State’s Foreign Affairs Manual (9 FAM 40.63 n4) when examining events that occur shortly after entry.

For example, if a person applies for admission into a school or for a change in nonimmigrant or immigrant status within 30 days of entry as a B-2 visa tourist, they are presumed to have acted in bad faith. According to INA 214(b), every foreign national who files paperwork to change to a different visa category or to stay in the U.S. permanently within the first 30 days after arriving in the U.S. is presumed to be trying to avoid the other longer procedures that everyone else has to go through.

That is, they are assumed to have had the preconceived intent to make a request for a  change before they even arrived in the U.S. — and therefore they obtained or used one visa in order to evade the normal screening process abroad for the nonimmigrant or immigrant visa they really wanted.

Wedding by the Sea

If the application for AOS is received by the USCIS between 31 and 60 days after entry into the USA, no presumption of bad faith is made, but there is a strong suspicion that the person may have acted in bad faith. That case will be scrutinized very carefully. A foreign national is allowed to have a general desire to remain in the U.S. (Matter of Hosseinpour, 15 I&N Dec.191 (BIA 1975)) but a fixed intent to remain in the U.S. is not allowed (Lauvik v. INS, 910 F.2d 658, at 660 (9^th Cir. 1990)). Filing paperwork to get a green card through AOS processing is perceived as a fixed intent to remain in the U.S. permanently.

It is up to AOS applicants to show that they had no preconceived intent to apply for permanent residence, pursuant to INA 214(b), because preconceived intent is a potential basis for discretionary denial of AOS (Von Pervieux v. INS, 572 F.2d 114,118 (3d Cir. 1978)).

Wedding License

If the AOS application was filed more than 60 days after entry, the automatic presumption is that the applicant acted in good faith.  With regard to immediate relatives, preconceived intent is not supposed to be presumed and is not supposed to be the basis for an AOS denial if it is the only adverse factor (Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980), Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981)) Matter of Battista, 19 I&N Dec. 484 (BIA 1987)). To be safe, it is best to wait and file the AOS application at least 61 days (or more) after the date of entry.

Keep in mind that the USCIS still reserves the right to investigate any AOS case if there is evidence of wrongdoing. If an AOS applicant has anything in his or her past visa history that suggests that he or she may have abused the visa process, or otherwise tried to take shortcuts, the USCIS has made it clear that they can deny such AOS applications in their exercise of discretion.

What do previous clients have to say? Take a look.

HELPFUL TIP:  If you entered the USA on a B1/B2 Tourist visa or F-1 Student visa (or any visa listed above), and after you entered the USA you decided to get married to a U.S. citizen, your U.S. citizen spouse should not file your green card paperwork with the USCIS in Chicago until the 61st day (or more) after your entry. In other words, to avoid a discretionary denial, do not file an I-485 Adjustment of Status (AOS) application during the first 60 days after arriving in the USA.
__________________________________________________________________
Email danielle@immigrationworkvisa.com or call (619) 235-8811 or (877) 884-6644 for a free phone consultation.

MOVING TO AMERICA

by Danielle Nelisse, Senior Immigration Attorney

There are quite a few ways to legally live and work in America, either temporarily or permanently.  Many of them involve lengthy processing times, as well as financial costs. 

Here are some of the basic ways:

1.  An American relative may file an I-130 petition for you to be on the green card (permanent resident) waiting list.  Wait times are from between 5 months and 25 years.  Foreign nationals are not allowed to wait inside the USA unless they obtain some other type of temporary visa.  To find out who can be on the waiting list and how long it might take, make sure you check the Visa Bulletin, which is a free report that is issued monthly.

2.  An American employer may file an I-140 petition for you to be on the green card (permanent resident) waiting list.  Wait times and processing of the employer sponsored green card range from 2 to 10 years. Foreign nationals are not allowed to wait inside the USA unless they obtain some other type of temporary visa. To find out how long it might take, check the Visa Bulletin.

3.   A foreign national, if from an “E Treaty Country,” may invest a minimum of $120,000 USD to purchase an American business that employs three U.S. citizens.  The business should already be operating for some period of time before the request for a temporary E-2 Investor Visa (which can be renewed indefinitely so long as the business is successfully operating).  It is difficult to arrange to purchase an American business from outside the USA; many foreign nationals request to enter the USA with a B1 visa to make the arrangements).  However, the E-2 visa normally does not lead to permanent residence (green card).

4.  A foreign national may invest a minimum of $500,000 USD in an existing American business enterprise that employs ten U.S. citizens.  The business must stay in operation for at least 5 years in order for the investor to obtain permanent residence (the EB5 Investment Green Card).  There is a list of eligible American businesses, but they are not guaranteed risk free by the American government.

5.  An American employer may file a request for a temporary Work Visa for you.  Most work visas allow foreign nationals to enter and work in America for time periods extending from 6 months to 7 years. Most work visas (H-1B Visa, H1B1 Singapore, H1B1 Chile, E3 Visa and TN Visa) require a 4 year college degree.  Other work visas (J, M, H-2B, H-3) may not.  It would be good to figure out which work visas you may be eligible for before applying for a job with an American employer.  If you are having difficulty figuring out which work visa you might be eligible for, you may find it helpful to hire an immigration attorney to help you figure it out.

6.  A foreign national may enroll in an American school while still living abroad and the school will help obtain an F-1 (student) visa to enter the USA and attend school.  American schools can be contacted directly through their websites.

There is more information on the website www.immigrationworkvisa.com about many of these visa or green card categories.

Questions? Email danielle@immigrationworkvisa.com

by Hillary Richonne (http://hillaryoftroy.wordpress.com)

DIVORCE BEFORE FILING I-751 PETITION

My name is Alexandra and I’m from Russia. I have a bachelor’s degree in computer science, speak English fluently and consider myself smart. My family in Russian is small, but we grew up close to each other. My story began in 2006 when I was 24 years old.

While visiting my sister and new brother-in-law in Idaho in 2006, I met an American man from Texas whom I had been chatting online with and Skyping. Mitch was loving and attentive and when he flew up to Idaho to see me, I knew that he was serious about me. He was a few years older than me, but that is common in Russia. My sister thought we looked cute together, and he spoke fondly of his own sister and the grandmother who raised them both. We continued to talk and get to know each other better and when I went back to Russia, we missed one another desperately. The men in Russia are not as nice, respectful, and hard working as the men in America.

Not long after, I decided to fly to Texas to see him. Mitch and I fell even more in love and when he took me to the top of a mountain and proposed I was thrilled to say yes. It was so romantic – he swept me off my feet and even had a diamond engagement ring. My parents weren’t thrilled that I got married without them, but was so in love with Mitch that I couldn’t wait for them to get tourist visas to get here.

We got married in a small, but special ceremony at a chapel in Texas later that year. Though we were living with Mitch’s sister, things were going really well and we were approved for my two year green card. We even got our own puppy. I traveled with Mitch to work conferences and we went to some of America’s beautiful national parks.

It wasn’t long before I realized that I didn’t know Mitch as well as I had originally thought. He had lied about his age, and had a drunk driving conviction which required regular trips back and forth to a small town in Texas to complete court mandated DUI classes and community service. He started drinking alcohol and made it a daily habit.

NEWLYWEDS FIGHTING ABOUT I-751 PETITION

Mitch would sit in a room alone with a bottle of alcohol, refuse to speak to me or his family, and often would refuse to go to work. He blamed me for the massive debt he had accrued by buying gifts for his ex-girlfriend, and the creditors that were chasing him because of it.

At first he would apologize for his bad behavior, but soon there was no end to the drinking and the mentally abusive cruelty. He’d only speak to me to tell me how much he hated me and how much I didn’t deserve to live. I was working full-time and he got fired from his job. I was too far away from my sister in Idaho to ask for her help – and also I was ashamed and embarrassed because I had made such a huge mistake in marrying Mitch.

I no longer felt smart. I know I’m young, but I don’t think I would have made such a huge mistake judging a man’s character if I was living in Russia, or dealing with a Russian man.

Mitch would drink in the car on the way back from his trips back from doing his community service work and DUI classes. He was eventually pulled over and arrested for a second DUI. When I called him earlier, he’d been so high on both alcohol and prescription drugs that I couldn’t understand him and he didn’t recognize me on the phone. Since the car had been impounded after the arrest I had no way to get to work the next day, not that he seemed to care.

The last straw came on a day when Mitch’s grandmother started screaming at him about the money he owed her and then at me for not having the money to post the bail for Mitch to get out of jail after the second DUI. Then she took the metal gate we used for the puppy and hit me over the head with it. My life of constant unpleasantness and verbal abuse had just become physically abusive and dangerous. Mitch did nothing to stop her and started hitting his own head against the wall.

I felt trapped, like I had no one to turn to during this crisis. I was afraid to call the police because l thought they would deport me. I ran to the phone and called my sister instead of the police and she called the local police for me. She also called Danielle Nelisse, an Immigration Attorney she knew, who told me that I would not get deported, that it was a good idea to call the police, and that I must immediately get out of danger.

I left that city the very next day and moved in with my sister and her husband back in Idaho. I finally felt safe, but very emotionally drained. After I left, my husband was diagnosed with various mental disorders and committed to a psychiatric hospital. I realized I could not go back to my husband or his family and therefore was faced with a new set of problems concerning my legal status in America, which was based on my marriage to a U.S. citizen. I still wanted very much to make a life for myself in America near my sister, and to continue working in computer science. My life in America had its ups and downs, but just because my marriage did not work out the way I’d planned didn’t mean I wanted to abandon all of the life I’d created here.

LET YOUR ATTORNEY HANDLE THE STRESS

I was in a difficult situation and I knew I needed a special Immigration Lawyer that not only knew how to keep my green card but someone who would listen to my specific problems and find a way to help me personally. I found that kind of help when I got in touch with Attorney Danielle Nelisse. My sister already had a wonderful experience with Attorney Nelisse when she emigrated from Russia and married her husband, a U.S. citizen in Idaho. She successfully got my sister her two year  marriage green card as well as her follow-up ten year green card.

Attorney Nelisse understands women from Russia who are trying to make a life in America.  I thought I’d have no hope of staying in America after the expiration of my two year green card, but Attorney Nelisse said she would find a way to keep me with my sister. I no longer felt my situation was as hopeless as I once thought. It turns out there is a loop-hole in the rules when filing an I-751 Petition to remove the conditions off of a two year green card even though the marriage has been dissolved, so long as there is proof the marriage was entered into in good faith.

There is a risk of being barred from entering the United States permanently if a marriage is seen as fraudulent. Attorney Nelisse worked hard to help me collect and submit the right kind and amount of I-751 evidence to prove my marriage was entered into in good faith, and I strongly feel that was why I was granted the ten year green card without further questions or interviews.  I was honestly disappointed that the marriage to the man I loved was over, but that man didn’t exist anymore. Attorney Danielle Nelisse provided me with the first good news in my life for over a year, and I was incredibly thankful for all she did for me.

Three years later, at age 27, I can start living my own American Dream, but I can do so without fear, knowing that I have an immigration lawyer on my side who cares about my personal welfare as well as helping me with all of my immigration needs. Attorney Danielle Nelisse cares about her clients and is very good at what she does. I would not be where I am today without her. I sincerely recommend her legal immigration services to anyone who needs help with immigration. Never assume your case is hopeless until you’ve tried to get help from someone who cares.

What do previous clients have to say? Take a look.

Call or email Immigration Attorney Danielle Nelisse in sunny San Diego, California to find out how she can help you with your
I-751 Petition.

Email danielle@immigrationworkvisa.com or call (619) 235-8811 or (877) 884-6644 for a free phone consultation.

Pretty Clothes are a Big Temptation

September 1, 2011

by Danielle Nelisse, Senior Immigration Attorney

Sometimes the temptation to steal something from an American department store is overwhelming. It looks easy. It looks like no one is watching. The shopping selection is amazing compared to another country’s stores. The temptation can sweep a person away when they have gone without for so long, or don’t have a steady paycheck to buy nice things. Even when married to a U.S. citizen, it gets old having to ask a husband or wife to buy every little thing. A new dress makes all the difference.  What could it hurt?  

Here is Amelia’s story:

Hello Danielle!

This is Amelia Smith and my husband is Richard Smith. I am from Uzbekistan. Remember, we live in California and you helped us successfully in getting my green card this year in June? It is a conditional two year green card based on my marriage to Richard, who is a U.S. citizen.

On July 21th I made a terrible mistake and I am experiencing the worst time in my life. I am so embarrassed to say that I was accused of committing a misdemeanor California Penal Code 484(a) petty theft and today the Criminal Court Judge sentenced me to 12 months probation and a fine of $360. I also have to finish 30 hours of volunteer work. The Judge believed I was sincere when I said I was so sorry for what I did to American Society . . . I promised Richard I am never going to put my legal status at risk again… I learned my lesson!!! even though it was most shameful thing according to my own personal standards. I don’t know what I was thinking when I took those items from the department store. It was very humiliating to get caught.

I want to turn to you for legal advise since you know me and handled my green card case . . . I was told by my criminal defense attorney that I am not going to have trouble getting the 10 year green card but I may have to wait 2 additional years in order to apply for citizenship — are those things true?

Of course I must STAY OUT OF TROUBLE for a year so I can seal my record BUT Immigration and the American Government will always know what I did (I was booked and fingerprinted).

Dear Danielle, could you please let me know is anything I should be aware of? The information I got is correct? I’m just so worried even though today was a relief after all my tortured time waiting to see the Criminal Court Judge. Thank you, I will appreciate your response.

American Dept. Store

Amelia should have contacted her immigration attorney before pleading guilty to anything, to learn the answers to her legal status questions. Often, criminal defense attorneys are not aware of the negative consequences that can happen to a green card holder (or the law has changed since they last checked), so it is best to talk to your immigration attorney before going before the Criminal Court Judge. There are many immigration attorneys who specialize in helping green card holders who have been accused of a crime.

In Amelia’s case, was stealing the new pretty dress worth it?  No.  She spent money for the criminal defense attorney and for an immigration attorney.  She had to pay court fines.  She did damage to her relationship with her new husband, who began to doubt his trust in her with regard to all money matters.  However, eventually he started to understand how hard it is to adjust to a new country, a new culture, and the pressure that put on her  - and to forgive her.

Many other countries do not punish people for stealing – if they are caught they are just asked to return the item and the whole incident is forgotten.  In the U.S., however, it is common for the store security guard or the store manager to call the police when they catch someone stealing. For people not used to seeing open displays of merchandise, the urge to pick up a few items may be very tempting.  But they must control the urge to commit this minor crime becaues the cost can become very expensive if they have to pay for a criminal defense attorney, an immigration attorney, and possibly lose their job.

Shoplifting (often called petty theft) is considered a misdeanor if the value of the merchandise is less than a certain amount, usually $300 or $500. When applying for citizenship it is necessary to show that a person has been a person of “good moral character” for the past 5 years (3 years for persons married to a U.S. citizen).  A single arrest for one petty theft is excused under the “petty theft exception” so long as the person is not still on probation at the time of the citizenship interview.

Did Amelia keep her green card? Yes. Was she granted her U.S. citizenship? Yes. Her case became more legally complicated, but due to the “petty theft exception,“ she kept her green card and will obtain U.S. citizenship!

QUESTIONS?  email danielle@immigrationworkvisa.com or call (619) 235-8811.