What is immigration law?
What are the different immigration agencies?
What is the difference between non-immigrant and immigrant visas?
What options do F-1 Students have after graduating?
What is the difference between lawful immigrant status and lawful presence?
When should you contact an immigration attorney?
Do I need an immigration attorney for my criminal charges?
What are “notarios” and why you should avoid them?
Q: What is immigration law?
Immigration law refers to the area of law in the United States that governs the process through which foreign nationals can enter and stay in the country on temporary or permanent basis. This area of the law encompasses the following subjects, among others:
- Temporary travel for work and pleasure; temporary student visas; temporary employment and business visas; employment-based permanent immigration; family-based permanent immigration; asylum; naturalization; removal proceedings; etc.
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Q: What are the different immigration agencies?
While the practice of immigration law can require attorneys to deal with many different federal, state and local government agencies, some of the most crucial ones are:
- Department of Homeland Security (DHS);
- U.S. Citizenship and Immigration Services (USCIS);
- Immigration and Customs Enforcement (ICE):
- Executive Office for Immigration Review (EOIR);
- Board of Immigration Appeals (BIA); and
- U.S. Department of Labor.
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Q: What is the difference between non-immigrant and immigrant visas?
Non-immigrant visas are granted to foreign nationals who intend to enter and stay in the United States on a temporary basis and usually for a specific purpose. Some of those purposes include:
- Transferring to an employer’s location in the US;
- Visiting for tourism;
- Temporarily working for a U.S. employer;
- Attending school;
- Getting married in the United States; etc.
Immigrant visas are granted to foreign nationals who intend to enter and stay in the United States permanently, or for an indefinite period of time. Immigrant visas are also called “green cards” or “permanent resident cards.” Immigrant visas are divided into very specific categories, including:
- Relatives of U.S. citizens or lawful permanent residents;
- Employer-sponsored visas;
- Self-sponsored visas;
- Diversity visas; etc.
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Q: What options do F-1 Students have after graduating?
The F-1 Student visa provides foreign students with legal non-immigrant status for the duration of their course of study at a given university. That legal status expires when students are finished with their academic program. Those students often wonder if they have to go back to their home country, or if they have other options at their disposal. Some of the available routes to recent graduates are:
- Optional Practical Training (OPT).
This option provides recent graduates with the opportunity to stay in the U.S. for an additional year and work full-time in their sphere of study. This one-year period can be used up either during your studies or immediately after, but the work must be closely related to your field of study. In recent years, an extension of 17 months after the initial one-year period has become available to graduates from a STEM (Science, Technology, Engineering, or Mathematics) degree.
- Further education.
Once you have graduated from your chosen course of study, you may decide to continue on to a masters or doctorate degree for your academic field, or you may even decide to start pursuing an additional, unrelated degree. This is a valid option for graduating students and can provide the grounds for further F-1 visa applications. However, applying for an extension or additional F-1 student visas can be challenging when it comes to timing, continued compliance with the program and government’s requirements for the specific visa category. Even though the Designated School Official (DSO) in your school should be able to assist you with that process, it is always a good idea to consult with an immigration attorney, especially when there are complicating factors involved.
- Temporary Specialty Worker Visa.
Also known as H-1B Visa, a U.S. employer can apply for this temporary work visa on behalf of a foreign national. Some of the basic requirements are that: the foreign national possess at least a bachelor’s degree; his/her job will require at least a bachelor’s degree; and the employer will be paying a “prevailing wage.” Because of the exceptionally high demand for this visa and the annual numerical limitations, the application process involves a “lottery” system, where out of the enormous pool of submissions USCIS will randomly pick enough applications for review and the rest will be discarded. This process makes the timing of filing your application extremely crucial.
- Temporary Investor Visa.
Recent graduates who are interested in investing a substantial amount of money and becoming business owners can take advantage of this visa category. Some of the basic requirements are that: the foreign national invests a “substantial amount” of capital; the investment is in a “bona fide U.S. enterprise”; and the foreign national will own at least 50% of the business, or have operational control over it.
- Family-based Immigrant Visa.
U.S. citizens or Lawful Permanent Residents can also apply for green cards for their relatives. Most categories of visas for relatives are subject to numerical limits and have to wait in line for many years before being able to apply for a green card. However, there is an unlimited number of visas available to immediate relatives of U.S. citizens who are able to apply without the lengthy wait time. Immediate relatives include: spouses, children under 21, and parents of U.S. citizens.
The categories of relatives who are also able to apply for green cards, but are subject to the numerical limits and lengthy wait times include: adult sons and daughters, and siblings of U.S citizens; as well as, children, adult sons and daughters, and spouses of Lawful Permanent Residents. The waiting times for those categories can vary from 2 to 24 years, depending on the category and the country of origin of the immigrant.
- Employment-based Immigrant Visa.
If you receive a job offer after graduation, your employer may be able to apply for a green card for you. Similar to the family-based immigration visas, employment-based visas also have numerical limitations that create lengthy processing and waiting times for applications. However, because of the harsh requirements for some of these categories, the demand is not as extreme, and you may be able to avoid the waiting times. Some of these categories include: Professionals with advanced degrees; persons with exceptional ability; skilled workers and professionals; and other very specific occupations. Further, you may be able to apply for employment-based green card even without an employer, if you can show that you have an extraordinary ability in certain spheres or that your work is in the interest of the U.S.
Because of the vast array of immigrant and non-immigrant visa categories, this is only a very short list of the options available to recent graduates. These options may also be available to J-1 Students, but it is important to keep in mind that there are different requirements associated with J-1 and F-1 student visas. There are also many changes to the immigration laws and the way they are applied in recent years, which may provide even further options for foreign nationals. For a complete overview of your case and evaluation of the immigration options at your disposal, please contact an immigration attorney. Please feel free to reach out to our office for a free legal consultation and evaluation.
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Q: What is the difference between lawful immigrant status and lawful presence?
Though it may not be obvious, there is a very significant difference between lawful immigrant status and lawful presence for a foreign national in the United States.
- When a foreign national is in the U.S. under a non-expired visa and has not violated any of the conditions for the visa, he/she is likely in lawful immigrant status. This is the best position for a foreign national to be in because it allows most flexibility for navigating through the immigration system and changing immigration status. Further, a foreign national is likely not subject to removal from the U.S. when under lawful immigrant status.
- There are also many situations in which a foreign national may be out of lawful immigrant status and still be considered lawfully present in the U.S. Knowing the difference between the two and how to take advantage of it can help a foreign national take advantage of certain immigration laws and avoid becoming a subject to the 3 and 10 year bars from admission to the U.S. This can be a great tool for navigating the immigration system, but it requires the in-depth knowledge of the laws that only an experienced professional can provide.
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Q: When should you contact an immigration attorney?
The U.S. immigration system is one of the most complicated ones in the world. While some immigration applications may be easy and straightforward to complete on your own, it is always best to consult an immigration professional for a final review. Because there are so many aspects to immigration law, simple mistakes in the beginning stages of applying for immigration benefits can lead to much greater challenges down the road. Simply filling out the wrong form, or filling out the right form incorrectly, can cause your whole application to be denied and may even become grounds for losing your current status. Using the services of an immigration attorney at every stage of your immigration process is strongly advised.
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Q: Do I need an immigration attorney for my criminal charges?
For non-US citizens, the short answer is “YES.” Under the immigration laws of the United States, a guilty plea or criminal conviction can have grave consequences for a non-citizen. Convictions for crimes involving “moral turpitude,” controlled substances, aggravated felonies, among others, can be grounds for denial of immigration applications or even for deportation.
For many people, the possibility of deportation is an even worse outcome than incarceration. Because, the immigration consequences depend largely on applying the state criminal statutes to the immigration laws, it is very important to consult with an experienced immigration attorney from the beginning of your case. In fact, in 2010, the U.S. Supreme Court decided that in criminal proceedings, a defense attorney has a duty to properly inform a non-citizen client of the immigration consequences from any criminal conviction. This case was Padilla v. The Commonwealth of Kentucky. Under Padilla, if a defense attorney fails to advise a client of the possibility of deportation, that client may have a claim for ineffective assistance of counsel and malpractice. An immigration attorney can work with your criminal defense attorney to ensure that you are fully aware of your rights before making any plea or conviction decisions.
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Q: What are “notarios” and why you should avoid them?
Because individuals are allowed to file their own immigration applications, not everyone involved in the process is required to be an attorney. Notarios are individuals who have some limited knowledge of the immigration system and purport to assist foreign nationals with preparation and filing of immigration applications in exchange for a fee. However, even if it may seem less expensive to utilize the services of a notario rather than an attorney, such practice is strongly discouraged. Because notarios are not attorneys, they are not responsible for mistakes they make on applications, however disastrous they may be for you. Further, notarios often try to learn just enough from the immigration process to fool people into believing they have all the answers, when in reality they provide mostly a disservice to their clients. Please avoid becoming a victim of “notario fraud” by consulting with a licensed immigration attorney for your immigration needs. Learn more about “notario fraud” at http://www.uscis.gov/avoid-scams.
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