by admin | Nov 28, 2014 | Visas
OUTSTANDING PROFESSORS AND RESEARCHERS
Outstanding professors and researchers may obtain permanent residency in the United States without going through the lengthy process of labor certification. To be considered outstanding, a professor or researcher must show that he or she is recognized internationally as outstanding in a specific academic area. The person must be coming to the U.S. for a tenure or tenure track position, or else for a comparable position at a university to conduct research. Alternatively, a researcher can qualify if he or she is coming to the U.S. to conduct research with a private employer if it is large enough and has documented accomplishments in the field. To qualify as an outstanding professor or researcher, one must have a sponsoring employer. To succeed, the applicant must provide extensive documentation of his or her prominence in their field, original scientific research, scholarly publications, articles about his or her work, and testimonials from colleagues in his or her field.
by admin | Nov 28, 2014 | Visas
SECTION 245 (i)
The Legal Immigration and Family Equity Act of 2000 (LIFE Act) and LIFE Act Amendments, extended Section 245 (i) of the Immigration and Nationality Act from January 14, 1998 to April 30, 2001. Those who were eligible had until April 30, 2001 to file a labor certification application or immigrant petition. To be eligible under Section 245(i), an applicant had to prove that he or she was actually physically present in the U.S. on December 21, 2000.
Section 245(i) permits individuals who are out of status (or illegal) to adjust within the U.S. to permanent residence, by paying a penalty fee of $1,000.
To be eligible for adjustment, a foreigner must be immediately eligible for an immigrant visa through a family member or employer sponsorship, or through an investment. All qualified beneficiaries were “grandfathered” under Section 245(i) as long as they filed a relative petition, employment-based petition or labor certification application by April 30, 2001.
What does it mean to be “grandfathered” under Section 245(i)? According to agency memos issued on April 14, 1999 and June 10, 1999, the USCIS has adopted an “alien-based” reading of Section 245(i). It is the alien beneficiary of a visa petition or labor certification filed on or before April 30, 2001 who is grandfathered and thus able to adjust status under Section 245(i). Thus, as long as the alien is the beneficiary of a labor certification or visa petition filed by April 30, 2001, the alien may later on adjust status under a different labor certification or visa petition.
However, according to an Interim Rule issued on March 26, 2001, the family or employment-based petition filed by April 30, 2001, must be considered “approvable when filed”, in order for the alien to later use another petition under which to adjust status. According to the interim rule, “approvable when filed” means that the petition was properly filed, meritorious in fact and non-frivolous. For example, a visa petition is not approvable when filed if it is fraudulent or if the named beneficiary did not have, at the time of filing, the family or employment relationship that would support the issuance of an immigrant visa. For example, when the basis for grandfathering is a labor certification application, the application must be filed and accepted by a state department of labor to be considered “properly filed”. Additionally, aside from the beneficiary, derivative family members who are accompanying or following to join are considered grandfathered under Section 245(i). A beneficiary may be grandfathered even though a petition is later withdrawn, revoked or denied, as long as it was “approvable when filed”. Thus, if a petition is denied because of a change in circumstances, such as the petitioning employer going bankrupt or the death of the sponsoring relative, the petition is considered “approvable when filed”. On the other hand, if a petition is denied on the merits, the petition may not be considered “approvable when filed”.
If you already have a visa petition or labor certification application pending, and wish to substitute a new petition, or if no petition has ever been filed on your behalf, but you believe you may be eligible for relative or employer sponsorship, you should discuss your case with an immigration attorney.
by admin | Nov 28, 2014 | Visas
UNITED STATES CITIZENSHIP
U.S. citizenship has many benefits. U.S. citizens have the right to vote, the right to hold public office, and eligibility for certain jobs (for example, with the federal government). Additionally, U.S. citizens may not be deported for crimes, as are permanent residents. The United States allows dual citizenship, so you may be able to retain the citizenship of your home country, as long as your home country allows dual citizenship also.
You must be a lawful permanent resident for five years in order to apply for citizenship. In the case of spouses of U.S. citizens, you must have been a permanent resident for three years to apply for citizenship. In order to qualify for U.S. citizenship, you must show that you have five years of continuous residence in the U.S. (in the case of U.S. citizen spouses, it is three years) as well as good moral character. Certain criminal convictions may bar one from establishing good moral character. People with criminal convictions who apply for naturalization may even be placed in removal (deportation) proceedings. Additionally, those who have failed to file U.S. federal income tax returns or have failed to register for the Selective Service may be denied naturalization. If you have a criminal history, have failed to file income tax returns or failed to register for the Selective Service, you should consult an attorney before applying for citizenship.
Moreover, applicants for naturalization must pass an English literacy and U.S. history and government test. Three groups of people are exempt from the English language requirement: 1) those who are developmentally disabled or mentally impaired; 2) those who are over 50 years old and have been permanent residents for more than 20 years; and 3) those who are over 55 years old and have been permanent residents for more than 15 years. The INS may give an easier history and government test to applicants who are over 65 and have been permanent residents for more than 20 years.
The Child Citizenship Act of 2000 (CCA) allows certain foreign-born children who are residing in the U.S. as permanent residents to acquire citizenship automatically, without applying to USCIS. A child born outside the U.S. of two alien parents will automatically acquire U.S. citizenship if he or she is living in the U.S. as a permanent resident and the parents become naturalized U.S. citizens before the child’s 18th birthday. This also applies to adopted children, as long as the child is in the custody of his or her adoptive parents pursuant to a lawful admission for permanent residence. Additionally, if the parents have been legally separated and the parent having legal custody of the child naturalizes, the child will automatically become a U.S. citizen. Such children can directly apply for a U.S. passport and do not need to apply to the USCIS for a Certificate of Citizenship, nor do they have to apply for naturalization.
MILITARY SERVICE AND U.S. CITIZENSHIP
Did you know that if you are a male between the ages of 18 and 26, unless you are on a nonimmigrant visa, you are required to register with the Selective Service? Even illegal aliens are required to register with the Selective Service, as well as parolees, refugees and applicants for asylum. Of course, U.S. citizens and lawful permanent residents are also required to register.
You can register on-line at the Selective Service web site, www.sss.gov. Although you are required to register, that does not necessarily mean you will be drafted. If there is a draft, men who reach age 20 during the year in which inductions occur would be the first group called. If more men are needed, the call would continue up to those who are 21, and so forth.
If you fail to register with the Selective Service, you may be denied naturalization to U.S. citizenship. Additionally, failing to register is a crime, punishable by a fine of up to $250,000, imprisonment for up to five years or both.
While only men must register, both men and women can volunteer to serve in the U.S armed forces. About 37,000 immigrants currently are serving in the U.S. military. Another 13,000 immigrants are part of the military reserves, many of whom have been called up for active duty.
If you serve honorably in the U.S. armed forces for at least three years, you may be eligible for naturalization to U.S. citizenship. The U.S. armed forces include the army, navy, marines, air force, and coast guard. You will not be required to meet the physical presence and continuous residence requirements of naturalization.
The National Defense Authorization Act for FY 2004 contains a provision to speed the naturalization process for permanent residents serving in the military. The Act allows permanent residents to naturalize after serving one year in the military during peacetime, authorizes naturalization interviews and oath ceremonies to be performed abroad, waives naturalization fees for those in the military, enables permanent residents who are members of the Selected Reserves or the Ready Reserves to speed up their naturalization in times of war or hostile military operations, allows spouses, unmarried children and parents of those killed in military service to file or preserve already filed applications for permanent residence, and speeds up the process for granting posthumous citizenship to those killed in battle.
by admin | Nov 28, 2014 | Visas
MANDATORY DETENTION
The 1996 immigration law instituted harsh measures which required the detention of aliens without hope of bond or parole. The new provisions were not put into effect until October 9, 1998, when the Transition Period Custody Rules expired.Arriving aliens who are subject to expedited removal must be detained until they are removed from the United States, unless 1) parole is required to meet a medical emergency or legitimate law enforcement objective, or 2) the alien is referred for a full hearing in front of the Immigration Judge.
Arriving aliens requesting asylum are detained. If there is not enough space to detain an alien, and the alien is claiming asylum from a country other than Mexico or Canada, the alien may be required to wait in Mexico or Canada until his or her asylum claim is decided. Aliens requesting asylum may be paroled for humanitarian reasons.
Aliens completing criminal sentences will be taken into custody by INS and will generally remain detained throughout immigration court proceedings without hope of bond. The INS is required to detain all aliens chargeable as terrorists and almost all aliens who are chargeable as criminals. Mandatory detention does not apply to the following groups of aliens:
1) aliens who are removable or deportable for a single crime involving moral turpitude, if they were sentenced to less than one year;
2) aliens who are removable for a conviction for high-speed flight from an immigration check point; and
3) aliens who are removable for domestic violence, stalking and the abuse or neglect of children.
After being taken into custody by the INS, an alien may only be released if it is necessary to protect a witness, a person cooperating with an investigation, or a family member of such a person. To be released, the alien must also show that he or she would not pose a danger to persons or property and that he or she does not pose a flight risk.
Additionally, all aliens who have final orders of removal or deportation are subject to mandatory detention. This includes all aliens ordered removed, even if they have not been convicted of any crime. INS is required to remove or deport within 50 days all aliens under final orders of removal or deportation. However, if INS is unable to remove or deport any alien under a final order within 90 days, the alien should be released under an order of supervision. This provision for release, however, does not apply to aliens inadmissible on any ground, those who are deportable or removable on criminal or security grounds, those who are dangerous and those who are flight risks.
Moreover, aliens under final orders of exclusion must be detained if they have been convicted of an aggravated felony. Aliens placed into immigration court proceedings before April 1, 1997 who were ordered deported or excluded are only subject to mandatory detention if they are terrorists or are convicted of certain crimes. If not, they will be detained on a discretionary basis, and if they have a final order of deportation or exclusion, their detention is high priority to INS.
Thus, people who have been permanent residents for many years and who may have a family to support, will be subjected to mandatory detention without hope of bond or parole should they be convicted of a crime (with a few exceptions), even if it is only their first offense. Moreover, because of the change in policy towards asylum seekers, many people who have suffered persecution in their home countries are being detained throughout their immigration proceedings in the United States.
by admin | Nov 28, 2014 | Visas
FORMS OF DOING BUSINESS IN THE U.S.
The United States of America prides itself on providing a free and fair environment for establishing and running a business. During the entire history of the U.S., immigrants from all over the world have played a key role in establishing and running successful businesses which not only help them achieve the American dream but also played a key role in the economy by providing jobs to U.S. workers. The U.S. Congress has enacted certain immigration laws that permit the temporary and permanent stay of business people in the U.S. However, the business should be a legal entity and in compliance with local, state and federal laws.
There are many ways of running a business. First, one may operate a business as a sole proprietorship if there is only one owner. The owner is personally liable for all the debts, taxes and liabilities of the business, as well as claims made against employees acting within the scope of their employment. The owner reports and pays taxes on the profits of the business on his or her individual income tax return.
A CORPORATE OFFICER, DIRECTOR, OR SHAREHOLDER IS USUALLY NOT PERSONALLY LIABLE FOR THE DEBTS OF THE CORPORATION
Second, a partnership is a business owned by two or more people. The partners usually have a written agreement. However, an oral agreement is enough to create a partnership. If there is no specific agreement between the partners on business issues, then the law of the particular state it is located in controls. Each partner can individually hire employees, borrow money, and perform any act to run the business. Each partner includes his or her share of the profits on his or her individual income tax return. Each partner is individually liable for the debts and taxes of the partnership.
Third, a limited partner, with one or more general partners, may form a limited partnership. A limited partner can invest in the partnership without incurring personal liability for the debts of the business. If the business fails, the limited partner only loses his or her capital investment. However, the limited partner cannot participate in managing or controlling the business.
Fourth, one may do business as a corporation. A corporation is considered a legal entity separate from the people who own or manage it. The corporation is a legal person, able to enter into contracts, incur debts and pay taxes. The corporation is taxed separately from the individuals who own it. A corporate officer, director, or shareholder is usually not personally liable for the debts of the corporation. This means that if you invest in a corporation, and the business does not do well, you will only lose the amount of money or the value of the property you contributed as stock. Creditors of the corporation cannot usually seize the corporate investor’s home, or other personal assets.
CREDITORS OF THE CORPORATION CANNOT USUALLY SEIZE THE CORPORATE INVESTOR’S HOME, OR OTHER PERSONAL ASSETS
There are some exceptions to the rule of limited liability for corporate officers, directors, and shareholders. For example, if a bank loans money to a new, small corporation, it may require the owners to use some of their personal assets as security for the debt. Additionally, if the corporation has failed to pay income, payroll or other taxes, the IRS will try to recover the unpaid taxes from responsible employees if they are unable to collect the taxes from the corporation.
Under New York law, the 10 largest shareholders of privately-held corporations are liable for the payment of wages due to the corporation’s employees. Another example of personal liability is when the owners of the corporation use it as a means to defraud third parties, or if they do something on behalf of the corporation which they are unauthorized to do, they can be held individually liable for any harm done to others.
by admin | Nov 28, 2014 | Visas
TN VISAS FOR CANADIAN AND MEXICAN CITIZENS
On October 16, 2008, the USCIS issued a new regulation extending the period of stay for TN visa holders from one year to three years. TN visa holders may also request extensions of stay of three years.
The category “Professionals Under the North American Free Trade Agreement” is available only to citizens of Mexico and Canada. Under the North American Free Trade Agreement (NAFTA) a citizen of a NAFTA country may work as a professional in another NAFTA country provided that
1) the profession is on the NAFTA list,
2) the alien possesses the qualifications for that profession,
3) the job is a professional one and
4) the alien is going to work for a U.S. employer. The spouse and unmarried, minor children of the principal alien may accompany the alien to the U.S., but they are unable to accept employment in the United States. TN status is temporary.
Canadian citizens are not required to obtain a visa, but instead receive TN status with the Immigration Service at the port of entry. The TN status will only be granted if the period of stay is temporary. The requirements for Mexican citizens are more stringent. The prospective employer must file a labor condition application; and a petition with the USCIS, and after the petition has been approved, the alien must apply for a non-immigrant TN visa at a U.S. Embassy or Consulate in Mexico.
Requirements for Canadians and Mexicans wishing to renew their TN status are not the same. Applications for extension of stay are processed by the USCIS. Canadian citizens have two options. First, they may have their employer file a petition with the USCIS. This option does not require leaving the U.S. Second, Canadians may return to Canada to re-apply at the port of entry with the same documentation that is required for an original application. Mexican citizens must have their employers renew their labor condition application and file another petition with the USCIS in order to extend their stay.
