Monthly Archives: March 2008

Understanding The Requirments For US Fiance Visas

Posted by on March 2, 2008 Comments Off

To enter the U.S. through marriage, one needs a Fiance Visa. As there are various Fiance Visa requirements, it is essential to know the basic laws pertaining to the Fiance Visa process and Fiance Visas in general.

The Fiance Visa processing takes about 120 days. Only after the marriage takes place, can the foreign citizen can apply for the Green Card visa. This visa gives them a permanent citizenship status as per U.S. visa requirements. The foreign citizen can thus migrate to the U.S. with the help of the Fiance Visa but it should comply with the laws of both the countries. Read more »

Immigration: Love, Marriage and the GreenCard by Shah Peerally, Esq.

Posted by on March 2, 2008 Comments Off

Marriage is a very important concept and establishment in the United States and as such Congress has determined that a foreign national who marries a United States Citizen spouse has the immediate ability to file for a permanent residence under a first category preference. It is good to know that a permanent residents (“greencard” holders) can also file a marriage petition however the waiting time for the priority date is long and therefore does not confer immediate ability to the beneficiary to obtain a greencard.

The first consideration in marriage cases is that the marriage has to be bona fide (literally in “good faith”) or a marriage not with the intention of solely getting immigration benefits. A good faith marriage is predicated on the intent of the bride and groom to establish a life together at the time that they were married. The United States Citizenship and Immigration Services (USCIS) formerly the INS (“Immigration”), has various criteria for determining if a marriage was entered in good faith. These include but are not limited to commingling of assets, joint leases, joint financial responsibilities, and pictures. It is generally accepted that a couple knows the most intimate affairs of each other. This is why it is very important to document your marriage in order to present evidence of your bona fide relationship. It is imperative that a person does not enter into a fraudulent marriage. A fraudulent marriage will penalize both the petitioner (US Citizen spouse) and the beneficiary (the person obtaining the benefits) and might even result in criminal charges including prison time. While Immigration does not recognize fraudulent marriages, they will recognize an arranged marriage as long as it is entered in good faith. Read more »

VAWA – A Solution to Immigrants in Abusive Relationships

Posted by on March 2, 2008 Comments Off

On January 6, 2006 the President signed the Violence Against Women Act (VAWA) into law. VAWA is a very powerful piece of legislation that has been successful in protecting abused spouses and children. Moreover, VAWA has very definite provisions to protect immigrants in abusive relationships from loosing their status in the United States or getting deported from the United States. This article is to be limited in scope and covers briefly VAWA as it pertains to immigration law only.

Who can use or benefit from VAWA?

Although VAWA stands for “Violence Against Women Act”, it applies to all spouses including abused men and children. A VAWA petition can be filed in situations where the spouse of the US citizen or Permanent Residence has abused the alien. Abuses do not always have to be physical. Abuse can be mental, psychological, physical, or a combination of all the above. In fact, many abuses are psychological and sometimes leave long lasting scars. For instance, Anita is Married to Ram who is a US citizen. Ram knowing that Anita is alone in the United States and depending on him to obtain a green card takes advantage of Anita. Ram will regularly make insulting comments to Anita. When Anita tries to answer the insult, Ram will be threatening on calling the Immigration Services on her. Read more »

Marriage to a Foreigner Made Possible with a K1 Fiancee Visa

Posted by on March 2, 2008 Comments Off

Saying “I do” to your foreign bride is a dream that can be made a reality. While the process of bringing your fiancée to your home country can be complicated and lengthy, it is not an impossible task. There are several stages in the application process and each step must be handled with an uncompromised degree of detail and thoroughness. Failing to complete all forms or providing inaccurate information will delay the process and cause you unnecessary stress. Before you forge ahead with your goal of bringing your dream fiancée home, take the time to inform yourself on which visa you need, whether or not your cause qualifies, and what the application process entails.

Before you can have your fiancée enter the United States and officially marry her, she must have the k1 fiancee visa. Although there are other types of visas, the k1 visa is the only accepted form of documentation that will allow you to legally marry your partner in the US. If, for example, you decide to marry your fiancée while she only has a tourist, student or business visa, her legal status will become questionable and potentially serious problems can result. To ensure that your fiancée is not refused permanent resident status, or that she is not deported back to her home country, you must obtain a k1 fiancee visa. Read more »

The Foreign Marriage: Choosing Whether to Marry Your Immigrant Spouse Inside or Outside of the U.S.

Posted by on March 2, 2008 Comments Off

If a U.S. citizen wishes to sponsor his or her spouse for a green card (“lawful permanent residency” under U.S. immigration law; see www.uscis.gov), timing can always be an issue. Whether a U.S. citizen marries the immigrant spouse inside or outside of the U.S. can affect how soon the couple can begin living together in the U.S.

When a U.S. citizen marries a foreign national (“immigrant” for purposes of this article) and the marriage takes place outside of the U.S., it could be difficult for the immigrant spouse to enter the U.S. as s/he once did, i.e., on a tourist visa or other temporary visa to visit his or her family, friends, and spouse.

The reason that re-entry into the U.S. is difficult for an immigrant is that when an immigrant marries a U.S. citizen, that shows CIS and airport DHS inspection officers that the immigrant has the permanent intent to stay in the U.S. and not return to their home country. Yet, when the immigrant tries to enter on a tourist visa or other temporary visa, the immigrant is telling CIS that s/he plans to stay only for a short period in the U.S. This conflicting temporary v. permanent intent problem (commonly referred to as “dual intent”) usually results in CIS concluding that the noncitizen committed “visa fraud.” Further, if a DHS (www.dhs.gov) inspecting officer at the airport discovers that the immigrant is married to a U.S. citizen when the immigrant tries to enter on a tourist or other temporary visa, the officer will be likely to conclude that the immigrant will overstay their visa and live permanently in the U.S. because of the existence of a U.S. citizen spouse giving the immigrant “good reason to stay” in the U.S. Read more »

How To Handle A Lay Off In USA – For the H1-B Visa Holder

Posted by on March 2, 2008 Comments Off

Amongst all the worries of a tech job these days, the most worrisome is a layoff. This problem is elevated by undefined and often contradictory interpretation of the INS law. So what should you do in case of a layoff?

Well first of all you need to know the law. Here is what I have found to be the best layman friendly explanation to the parts of INS law pertaining to H-1B workers.

First of all, too many persons have stated that an H-1B worker who is laid off has ten days to either apply for a new job or leave the U.S. This is completely untrue.

The confusion regarding the “ten day” rule stems from the following regulation (8 C.F.R. §214.2(h)(13)(I)(A)):

“A beneficiary shall be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition.” Read more »

H-1B Visas – Complications in Maintaining Status and Avoiding Liability

Posted by on March 2, 2008 Comments Off

Introduction:

Most employers believe that the most difficult part of the H1-B Visa process is the H1-B Visa approval process. However, seasoned immigration attorneys realize that after the U.S. Citizenship and Immigration Services (“USCIS”) approves an employer’s H1-B Visa application, maintaining the valid H-1B Visa is arguably even more difficult.

This is where an experienced immigration attorney becomes a company’s invaluable asset. Employees and their employees must adhere to strict H1-B Visa guidelines that carefully define an H1-B employee’s place of employment, job duties, and hours of employment. A change or addition to any of those categories can potentially trigger a loss of status, or even subject the employer to liability.

Therefore, this article explores (1) possible situations where an employer must notify the USCIS of changes in a H-1B employee’s duties, (2) whether a new or amended H-1B petition must be filed, and (3) how an employer can properly terminate an H-1B employee to avoid liability. Read more »

Obtaining Permanent Residence Based On Employment

Posted by on March 2, 2008 Comments Off

It is common knowledge that most people obtain their permanent residence (“greencard”) through family petitions (marriage, siblings and parents) or asylums. This is quite true. However, there is a significant majority of people especially in the Bay Area who have obtained their permanent residence through employment. In fact, our office has successfully processed many of such cases.

First before proceeding to filing such petitions, you have to have an employer who is ready to offer you a position. There are some other petitions that do not require an employer such as National Interest Waivers. But this article will concentrate on the labor certification process. Note that because such petitions are for future prospective employment, you do not have to be working for this employer until you get a greencard in your hand. Thus a labor certification can be processed even if you are not working for this particular company right now. In fact, you can even start the process when you are outside the United States. For instance while you are in Fiji.

The process for obtaining permanent residence based on employment consists of three phases: 1) the labor certification, (Processed with the Department of Labor) 2) the visa petition, and 3) either adjustment of status (obtaining a green card without leaving the United States, if the employee is eligible) or consular processing (processing in which the employee would leave the United States in order to obtain an immigrant visa). Read more »

H-1B 7th Year Extensions and the Visa Backlog

Posted by on March 2, 2008 Comments Off

What is an H-1B?

An H-1B temporary worker is a foreign national who is coming temporarily to the U.S. to perform a specialty occupation. A specialty occupation is defined as “an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty as a minimum for entry into the occupation in the United States.” INA214(i); 8USC 1184(i)

Limitation on Duration of Stay

An employer may request initial employment for up to a maximum of 3 years. The H-1B can be extended. Generally, the maximum amount of time that an individual can hold H-1B visa status is 6 years.

On the 6th Year as an H-1B + Visa Backlog = Trouble

A major issue created by the EB-3 (and EB-2) backlog is its effect on many H-1B workers who are subject to the 6 year limitation. Read more »

Employment Based Immigration – 3 Steps to Understanding the Process

Posted by on March 2, 2008 Comments Off

U.S. employers wishing to sponsor a foreign national for permanent residency face the daunting task of navigating through the treacherous waters of U.S. immigration laws. The vast majority of applicants will fall into the EB-2 or EB-3 category. Sponsoring foreign workers for permanent residency on the basis of an EB-2 or EB-3 petition generally requires a three step process:

1.) a Labor Certification
2.) an immigrant visa petition
3.) filing an application to adjust status to that of a permanent resident.

EMPLOYMENT BASED IMMIGRATION

A U.S. employer may sponsor a foreign national who is abroad or currently in the U.S. under their employ for permanent residency (colloquially known as a “greencard.”) through an employment based immigrant petition. Read more »

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