Category: Immigration

What are the requirements for Naturalization?

If you are not a U.S. citizen by birth or did not acquire U.S. citizenship automatically after birth, you may still be eligible to become a citizen through the naturalization process.

What form do I need to fill out to begin the naturalization process?

If You Are: Required Forms
Are 18 years of age and older Application for Naturalization (Form N-400)
Acquired citizenship from your parent(s)while you were under 18 years of age Application for a Certificate of Citizenship (Form N-600)
Are an adopted child who acquired citizenship from your parent(s)

 

What are the requirements for naturalization?

What are the requirements for naturalization?

The basic requirements for naturalization are as follows:

  • You should be over 18 years old, and a permanent resident;
  • You should have resided in the U.S. as a lawful permanent resident for five years continuously before you file for naturalization. This period is reduced to three years if you are married to and living with the same U.S. Citizen spouse who petitioned for you or at least three years as a permanent resident;
  • You must have been physically present in the U.S. for at least half of that 5 or 3 year period;
  • You have to demonstrate that you are a person of good moral character;
  • You must demonstrate a basic knowledge of U.S. history and government knowledge;
  • You must show that you can read, write, and speak simple English;
  • Finally, you must pledge allegiance to the United States government.

What does it mean to have “good moral character”?

Good moral character is a very important requirement for naturalization. Certain actions, such as illegal gambling, prostitution, failure to pay your taxes, lying to immigration officials, problems with drugs or alcohol, or being in arrears with your child support payments, may make it difficult to prove good moral character. Parking tickets or minor offenses do not usually disqualify an applicant, but repeated convictions for minor violations might. Having a criminal record can make the process a bit more difficult, but it does not mean you will be automatically denied.

Sometimes people with criminal records fail to apply for citizenship, because they believe that they are ineligible. It is a misconception that a person who has been charged with a crime cannot become a citizen. A person may be eligible for citizenship, even if he or she has been charged with a crime in certain instances. If you have a criminal record, it is recommended that you contact an experienced immigration attorney for advice, before filing your naturalization application.

If I have been convicted of a crime, but my record has been legally erased, do I need to indicate that on my application or inform an Immigration Officer?

Yes. In fact, you should always be honest with Immigration regarding the following:

  • Arrests (including those by police, Immigration Officers, and other Federal Agents);
  • Convictions (even if they have been erased/expunged); and,
  • Crimes you committed for which you were not arrested or convicted.

Even if you have committed a minor crime, Immigration may deny your application if you do not mention any previous incidents to the Immigration Officer. It is extremely important that you inform Immigration about any and all arrests, even if someone else has advised you that you are not required to do so.

Where do I file my naturalization application?

You should send your completed Application for Naturalization (Form N-400) or appropriate naturalization form to the appropriate United States Citizenship and Immigration Services Service (USCIS) Center.

How can I pay my application fee?

You must send your fee with your application. Remember that your application fee is not refundable, even if you withdraw your application or the United States Citizenship and Immigration Services (USCIS) denies your case. You must pay your application fee with a check or money order drawn on a U.S. bank in U.S. dollars, payable to the “USCIS.” However, if you are a resident of Guam or the U.S. Virgin Islands, the rules are as follows:

 

If you are a Resident of: Make fees payable to:
Guam “Treasurer, Guam”
U.S. Virgin Islands “Commissioner of Finance of the Virgin Islands”

 

Do I have to go for an interview or take an examination, as part of the naturalization process?

Yes. Each naturalization applicant must undergo an interview with the United States Citizenship and Immigration Services (USCIS). At the interview, you will be asked questions about your application for naturalization and background. Appendix 1 has some very useful tips on how to behave during the interview process. Every applicant must then take an examination, which will test their knowledge of the English language, and a civics exam to test their knowledge of U.S. history and government.

Where can i be fingerprinted?

After the United States Citizenship and Immigration Services (USCIS) has received your application, they will notify you of the location where you should report to get fingerprinted.

Will United States Citizenship and Immigration Services (USCIS) provide special accommodations for me if I am disabled?

Some people with disabilities need special consideration during the naturalization process. United States Citizenship and Immigration Services (USCIS) will make every effort to make reasonable accommodations in these cases. For example, if you use a wheelchair, they will make sure your fingerprint location is wheelchair accessible. If you are hearing impaired and wish to bring a sign language interpreter to your interview, you may do so. Asking for a special accommodation will not affect your eligibility for naturalization. The United States Citizenship and Immigration Services (USCIS) makes decisions about How long will it take to become naturalized

The time it takes to become a citizen varies from one local office to another.

How do I determine the status of my naturalization application?

The receipt notice which you will receive from the United States Citizenship and Immigration Services (USCIS) will provide you with the approximate time it will take for them to process your case. If you have NOT been scheduled for a naturalization interview, you can visit the local office having jurisdiction over your case, to inquire about the status of your application.

Can I reapply for naturalization if the United States Citizenship and Immigration Services (USCIS) denies my application?

In most cases, you may reapply for citizenship if the United States Citizenship and Immigration Services (USCIS) denies your application. If you reapply, you will need to complete and resubmit a new Application for Naturalization (N-400) form and pay the fee again. You will also need to have your fingerprints and photographs taken again. If your application is denied, the denial letter should indicate the date you may reapply for citizenship. If you are denied because you failed the English or civics test, you may reapply for naturalization anytime after your denial. You should reapply whenever you believe you have learned English or civics well enough to pass the test.

When did/does my time as a Permanent Resident begin?

Your time as a Permanent Resident begins on the date you were granted permanent resident status. This date will be printed on your Permanent Resident Card (formerly known as an Alien Registration Card). Figure A shows a sample Permanent Resident card:

FIGURE A:

If the United States Citizenship and Immigrations Services (USCIS) grants me naturalization, when will I become a citizen?

You become a citizen as soon as you take the Oath of Allegiance to the United States. In some places, you can choose to take the Oath the same day as your interview. If that option is not or if you prefer a ceremony at a later date, the United States Citizenship and Immigration Services (USCIS) will notify you of the ceremony date with a Notice of Naturalization Oath Ceremony (Form N-445).

What does the Naturalization Certificate look like?

Figure B illustrates a sample Naturalization Certificate:

FIGURE B:

How do I register with Selective Service?

Selective Service registration allows the United States Government to maintain a list of names of men who may be called into military service, in case of a national emergency requiring rapid expansion of the U.S. Armed Forces. By registering all young men, the Selective Service can ensure that any future draft will be fair and equitable. Federal law requires that men who are at least 18 years old, but not yet 26 years old, be registered with Selective Service. This also includes all male non-citizens within these age limits who permanently reside in the United States. Men who are lawful permanent residents must register. Men cannot register for the Selective Service after reaching the age 26.

Why do I need to register with the Selective Service?

Failure to register for the Selective Service may (in certain instances) make you ineligible for certain immigration benefits, such as citizenship.

Conclusion

Given the current challenges facing those seeking U.S. citizenship, it is strongly recommended that everyone interested in doing so should consider becoming a citizen as soon as they become eligible. There are a number of ways to be considered a “born U.S. citizen” — generally speaking, these include if you are born in the United States or if you are born to U.S. citizen parents. Please note that there are a number of conditions that must be met to be considered a naturalized U.S. citizen. A variety of significant benefits await all who become U.S. citizens. If you are a U.S. citizen, you will not be deported, even if you are charged with a serious crime (in most cases). Additionally, becoming a citizen gives you the right to vote, become eligible for Medicaid, sponsor relatives, etc.

 

Call BLACKMAN & MELVILLE, P.C at (718) 576-1646 for a free personal consultation.

WHAT IS POLITICAL ASYLUM?

Are you in fear of persecution in your home country
because of your race, religion or membership in a social group?

Do you fear future persecution in your home country
because of your political views or membership in a particular social group?

If you’ve answered “Yes” to either question above, you may be able to seek asylum in the United States.Every year, people come to the United States to escape present or future persecution because of their race, religion, nationality, membership in a particular social group, or their political opinion. In 1981, the United States passed the Refugee Act enabling the United States Citizenship and Immigration Services (USCIS) to grant political asylum or refugee status to those who fear persecution in their home country. According to a recent New York Times article (J. Preston, 9/30/10), the U.S. granted asylum in more than 22,000 cases in 2009.

What is Political Asylum?

Political asylum is a form of protection available to people already present in the U.S. who are afraid of returning to their home country because of actual persecution, or who have a well-founded fear of actual persecution because of their:

  • Race
  • Religion
  • national Origin
  • Membership in a particular social group
  • Political Views

If you are still in your home country, and the above applies to you, you may be able to get refugee status, instead of asylee status. In other words, a “refugee” is a person who is living outside the United States and intends to enter the U.S. because he or she fears persecution in his or her home country, due to the above mentioned grounds. Those eligible for political asylum or refugee status can become lawful permanent residents after their cases are approved by United States Citizenship and Immigration Services (USCIS) or the Immigration Judge.

Who can apply for asylum?

Individuals of any nationality must request political asylum at a U.S. port of entry (airport, seaport or border crossing), or file for it within one (1) year of arriving in the U.S. You will not be eligible for asylum for Nepalis if you participated in the persecution of others or if you have “firmly resettled” in another country. If you entered the U.S. on a valid visa, the time you spent in the U.S. with that visa does not count as part of the one (1) year period.

When must I apply for asylum?

Generally, you must apply for asylum within one (1) year of your last arrival into the U.S. Exceptions may apply, such as: (1) changed circumstances in your home country that affect your eligibility, or (2) extraordinary circumstances related to your lateness in filing.

Can I apply for asylum if I am here illegally?

Yes. You can apply for political asylum, even if you are in the U.S. illegally. For example, if you have entered the United States by means of a fraudulent visa or have crossed the border, you may still apply for political asylum within one (1) year of your last arrival. You may file after the one (1) year mark, but only if you are able to demonstrate that you are eligible for an exception to the one (1) year rule.

Can I apply for asylum if I was convicted of a crime?

Yes. However, depending on the crime, you may be barred from being granted asylum.

Can I be barred from applying for asylum or being granted asylum?

You may be barred from applying for asylum if:

  • You applied for asylum before and were denied by an immigration judge or the Board
  • You did not apply within one (1) year of your last arrival; or,
  • You could be removed to a safe third-party country.

However, you can request a reopening of your asylum case, based upon changed country conditions in your home country.

How do I apply for asylum?

To apply for asylum, you will need to complete an Application for Asylum and for Withholding of Removal (Form I-589) and follow the instructions very carefully. It is strongly recommended that you retain an experienced immigration attorney if you are considering applying for political asylum. If you do not have any other legal status and if an asylum application is denied by the immigration judge (or other similar forms of relief, such as withholding of removal, relief under the convention against torture, etc., are denied), then you will be ordered deported by the immigration judge.

Am I subject to security and background checks, if I apply for asylum?

Yes. Every individual who applies for asylum is subject to background checks and security checks from Immigration Appeals;

Will I be fingerprinted if I apply for asylum?

Yes. After you have filed your asylum application, you will receive a notice in the mail with the date, time, and location where you have to report for fingerprinting.

Are there other similar forms of relief which can be granted if my asylum claim is denied?

Yes. The most common, similar forms of relief are withholding of removal, relief under the convention against torture, and voluntary departure.

Can my family accompany me if I apply for asylum in the U.S.?

Your spouse and children present in the United States may be included on your application at the time you file or at any time thereafter until a final decision is made on your application. Your children must be under twenty-one (21) and unmarried to be included as dependents. They should accompany you to your asylum interview.

Can I work after I file for asylum?

If United States Immigration and Naturalization Services has received your complete asylum application. It takes approximately thirty (30) days to know if your request for employment has been granted or not. If granted asylee status, you are authorized to work, as soon as your asylum case has been approved.

Can I travel outside of the U.S. after I file for asylum?

If you have to travel outside the U.S. before a final decision has been made on your asylum case, you must receive Advanced Parole before leaving the U.S., so you will be allowed back in upon your return. If you do not get Advanced Parole, your application for asylum might be denied, United States Citizenship and Immigration Services (USCIS) will presume you have abandoned your asylum application. It is strongly recommended that you should not travel to the Country where you fear the persecution.

Can I get a green card (lawful permanent resident status) if granted asylum?

Yes. After one (1) year of your approved asylee status, you can apply for adjustment of status to become a lawful permanent resident of the United States.

Does the U.S. limit the number of individuals who can be granted asylum?

No. There is no quota limit on the number of individuals who can be granted political asylum; however, every year there is a limit (10,000) on the number of people who can get permanent resident status based on political asylum. At BLACKMAN & MELVILLE, P.C, we understand the complexities of deportation. In order to adequately defend your rights before an Immigration Judge, call BLACKMAN & MELVILLE, P.C at (718) 576-1646 for a free personal consultation.

LEARN ABOUT THE P-VISA & HOW IT CAN HELP YOU!

The P visa generally applies to foreign athletes and entertainment groups who do not meet the ”extraordinary ability” standard under the O visa classification. The P visa allows talented individuals to enter into the U.S. for a temporary period to compete in a sports competition or participate in an entertainment performance.(Are you a foreign citizen and a great athlete, but unable to meet the standards for an O visa?

Are you or your sports team recognized at the international level?

Do you or your team have a sports competition in the United States?

or . . .

Are you part of an internationally known performing group in the entertainment industry?

Do you and your group have to perform a show in the United States?

The P-1A Visa

The P-1A visa category is for athletes coming to the U.S. temporarily to play in a specific, internationally recognized sports event or competition, either as an individual athlete or as part of a group or team. Some internationally recognized events include the World Cup (FIFA), the U.S. Open, any World Championships, and the Olympics.

What do I need to show as an individual athlete for a P-1A visa?

You must demonstrate that you are highly skilled and are internationally recognized in your particular sport, more so than other athletes in your sport. You must also show that you are coming to the U.S. to participate in a specific event, competition or performance.

What does my team need to show for a P-1A visa?

The team must be coming to the U.S. for a team event and must be internationally recognized in the sport. The event or competition must be a popular competition, in which other internationally known teams compete as well.

What documents do I need to have?

You must provide a number of documents to qualify for a P-1A visa. These documents are listed below:

  1. A written consultation from an appropriate labor organization;
  2. If available, your contract with a major U.S. sports league or team, or a contract in an internationally known individual sport;
  3. A document explaining the competition and the program of the event;
  4. And at least two of the following:
    • Proof that you have played in a big event before with a U.S. sports league;
    • Proof that you have played in a big event before with a team in your country in an international competition;
    • Proof that you have played for a U.S. college or university against other college teams;
    • A letter from an official of a major U.S. sports league or from an official of the sport, which shows how you or your team is internationally known;
    • A letter from a sports journalist or a sports expert, showing how your team is internationally known;
    • Proof of what rank you and/or your team is, if applicable;
    • Proof that you or your team has received awards or honors.

How long can I stay in the U.S. on a P-1A Visa?

As an individual P-1A visa holder, you may stay as long as you need to compete in the particular event, but not more than five (5) years. You can ask for an extension for up to five (5) years at a time. The maximum amount of time allowed on a P-1A visa is 10 years. As a team member, you may stay as long as the team needs to complete the sports event, but not more than 1 year. The team can ask for an extension for up to one (1) year at a time.

Can the family members of P-1A visa holders accompany them to the U.S.?

Yes. The spouses and unmarried children (under 21 years old) of P-1A visa holders can apply for P-4 visa status. The family members of P-1A visa holders cannot work in the U.S., but may attend school.

Can my coach or trainer accompany me to the United States?

If you cannot perform your sport without your coach or trainer and their services cannot be provided by a U.S. worker, your coach can apply for P-1 visa status as well. Team officials and referees are also eligible for this classification.

What documents do they need to show?

Coaches and trainers must provide the following documentation:

  • A consultation from an appropriate labor organization with expertise in the area of the support person’s skill;
  • A statement explaining why the applicant is essential to the athlete’s performance in the event or competition;
  • A copy of their contract with their employer and a summary of what the coach or trainer or other support personnel has to do while accompanying the athlete in the U.S.

The P-1B Visa

The P-1B visa category is for individuals coming to the U.S. temporarily to perform as members of an internationally recognized entertainment group. This visa is not available to entertainers not performing as a part of a group.

What does my group need to show for a P-1B visa?

Your group must show that at least 75% of your group members have been a member for at least one (1) year. You must also show that the group is internationally recognized and have had high levels of achievement. The reputation of the group, not its individual members, is taken into consideration.

What documents are required, either individually or as a group?
The list of necessary documents for a P-1B visa is as follows:

  1. A written consultation from an appropriate labor organization regarding the nature of the work that you do and your qualifications;
  2. A list of all the dates and places of your performances;
  3. Proof that your group has performed together for at least one year;
  4. A copy of the contract or summary of terms between you and the person who is employing you and your group;
  5. A list detailing each member of the group and when they started performing with the group regularly;
  6. Proof that your group is known all over the world and has a reputation for excellence;
  7. Proof of nominations for awards, receipt of awards, or at least three of the following:
    • Proof that your group performed as the lead in big productions;
    • Proof that your group has been reviewed and written about in major newspapers, trade journals, magazines or other published material;
    • Show that your group has performed or will perform in a starring role in popular events;
    • Show that your group has an international reputation for excellence;
    • Proof that your group has won awards and recognition;
    • Proof that your group has been paid and will be paid a high salary for its services, more than others in your field.

How long can I stay in the U.S. under the P-1B visa?

Your group can stay in the U.S. with a P-1B visa for the time it needs to complete the event, but for no more than one (1) year. Your team can file for an extension, which is usually granted for one year at a time.

Can my family accompany me to the U.S. on a P-1B Visa?

Yes. The spouses and unmarried children (under 21 years old) of P-1B visa holders can apply for P-4 visa status. The family members of P-1B visa holders cannot work in the U.S., but may attend school.

Can my cameramen, lighting technicians and stage people accompany me to the United States?

If you cannot perform at your event without your cameramen, lighting technicians, and stage assistants and their services cannot be provided by U.S. workers, they can apply for P-1 visa status with you. Front office personnel are eligible for this classification, as well.

What documents are required by staff members?

Cameramen and technicians must provide the following documentation:

  • A consultation from an appropriate labor organization;
  • A statement explaining why they are essential to the group’s performance in the event;
  • A copy of their contract with their employer and a summary of what the personnel has to do while accompanying the group in the U.S.

Conclusion

If you are an internationally recognized sports personality, or part of an internationally known sports team or entertainment group and do not qualify under the “extraordinary ability” prong of the O visa, you may still be able to compete or perform in the United States with a P-1 visa. Similar to the O visa, you must be internationally recognized in your field and have had high levels of achievement. Under this visa your family members and various other individuals who are essential to your skill or talent may accompany you to the U.S. They may not work, but they

Edited, Supplemented and Republished by Nigel E. Blackman, Esq. for www.bmlawonline.com

BASICS OF A GREEN CARD AND WHAT IT MEANS TO HAVE ONE

  • Are you an immediate relative, a spouse, a minor child, an unmarried child or a parent of a U.S. citizen or green card holder?
  • Are you a married son or daughter (or a spouse or a minor child of theirs) of a U.S. citizen?
  • Are you a brother or sister (or a spouse or a minor child of theirs) of a U.S. citizen?

 

If you answered “Yes” to any of the questions above, this chapter may provide you with the information you need to get sponsored to reside permanently in the U.S.! Under the family-based immigration category, a U.S. citizen or a green card holder may be eligible to sponsor his/her immediate relatives. Such relatives include a spouse, minor child, unmarried children and parents. In addition, under this category, a U.S. citizen can sponsor married sons/daughters and siblings.

Current U.S. law allocates 480,000 green cards per year to numerically-limited (i.e., including immediate relatives) family-based immigrants, with an established “floor” of 226,000 family-based preference immigrants. Through applying for the proper classification and following the steps outlined for that classification, you may be on your way to obtaining one of these green cards yourself!

Basics of a green card and what it means to have one

A lawful permanent resident (also known as a green card holder) is a foreign citizen who has been allowed to permanently live and work in the United States. A requirement for U.S. citizenship is having at least five years of continuous permanent residency status or three years if you have obtained your permanent residence through your United States citizen spouse. If you have a relative who is a citizen of the United States or a relative who is a lawful permanent resident, and you want to become a lawful permanent resident based on their status, there are many steps that you and your relative must go through.

Please note: In many, if not all cases, it would be wise to seek the legal counsel of an immigration law attorney, whose expertise will guide you through the often complex steps required to obtain legal permanent residency in the U.S. (i.e., a green card). A note from the author can be found at the end of this chapter regarding the services our immigration law office can provide you, if such legal counsel is required or sought.

Sponsoring Relatives

A permanent resident can petition his or her spouse and unmarried children, regardless of his age. That is, a permanent resident of the United States can sponsor his wife and any unmarried children to come to the United States. Many people seeking to reunite their family thinks that they cannot apply for their children who are over the age of twenty-one. This is incorrect! Even if your son or daughter is over twenty-one (and he or she is currently single), you can sponsor him or her if you are a permanent resident of the United States. It is a good idea for a green cardholder or a citizen to apply for his relatives as soon as possible. This is because it may take a very long time for unmarried sons or daughters to come to the United States. The Visa Bulletin published by the US Department of State provides guidelines regarding the approximate time it takes for your relative to come to the United States.

Who is eligible to sponsor?

To sponsor your relative to immigrate to the U.S., you have to meet certain criteria:

  • You have to be a citizen or a lawful permanent resident of the U.S. and be able to show documents proving your status, such as a U.S. passport, Naturalization Certificate, a birth certificate, or a green card.
  • You have to file an affidavit of support. You need to show that you can support your relative to be able to live at least 125% above the poverty line.

If you are a U.S. Citizen, you may petition for the following (Note: you have to make sure you can provide proof of your relationships):

  1. Husband or wife;
  2. Unmarried sons or daughters under 21 years old;
  3. Unmarried sons or daughters of any age;
  4. Brothers or sisters, if you are at least 21 years old; or,
  5. Parents, if you are at least 21 years old.

If you are a lawful permanent resident, you may petition for the following (Note: you have to make sure you can provide proof of your relationships):

  1. Husband or wife; or,
  2. Unmarried sons or daughters of any age.

Restrictions for foreign national applicants

The U.S. immigration laws prohibit issuing of visas for certain applicants. Examples of applicants who will be refused visas are those with communicable diseases (for example, tuberculosis), have a dangerous physical or mental disorder, or are drug addicts, prostitutes, have committed serious criminal acts, are terrorists, subversives, members of a totalitarian party, or former Nazi war criminals, have used illegal means to enter the U.S., or are ineligible for citizenship. These are just some of the examples of reasons that a visa will be denied. For more information on ineligibility, please contact an immigration lawyer’s office to determine if you or your relative falls into one of the categories.

USCIS Forms to Consider:

I-130:
An I-130 petition must be filed if you wish to sponsor qualified family members, such as a spouse, parents, child or sibling who is residing outside the U.S.

I-130/I-485:
In certain situations, an adjustment of status application, Form I-485, can be filed along with Form I-130, within the U.S., if the family member you wish to sponsor is in this country. If your family member is in the U.S. illegally then you should consider retaining an attorney.

K Visa:
The K-1 visa is filed for the fiance of U.S. citizens and the K-3 Visa is filed for the spouses of U.S. citizens. K-3 visas apply to individuals who are married to U.S. citizens and K-1 visas apply to U.S. citizens who are engaged and intend to apply for a fiance visa.

V Visa:
Some beneficiaries of I-130 filed before Dec 21, 2001, may be eligible for the V Visa. The beneficiary can qualify for a V visa in the United States, or he/she may be eligible to obtain a V visa at an overseas Consulate. V visa holders can work in the United States and may be eligible to travel to their home country, under certain circumstances.

Battered Spouse Waivers:
This waiver is for any spouse seeking permanent residency in the U.S. because they have been battered and the abusive sponsor is unwilling to cooperate in the immigration process.

I-751:
This category applies to individuals who receive their green card from their U.S. Citizen or Permanent Resident spouses. If you are married for less than two years, immigration will grant you a temporary green card, which will be valid for two years. 90 days before the expiration of your temporary green card, all temporary green card holders are required to file form I-751 with supporting documents, in order to qualify for a permanent green card to reside in the United States. Failure to file the I-751 application will result in the termination of your green card and can result in deportation (now known as “removal proceedings”) being instituted by the United States Immigration and Customs Enforcement. If the marriage has terminated or the sponsoring individual refuses to cooperate, you may also file for a waiver of the joint filing requirement. In such instances, you should definitely consider the services of an experienced immigration attorney.

Getting A Green Card Under the Family Based Immigration Category

The first stage of getting a green card begins when the U.S. citizen relative files for a Petition for Alien Relative (I-130). Once the application has been received by the United States Citizenship and Immigration Service (USCIS), you will receive a receipt notice. Thereafter, USCIS will approve the application or deny it, or mail you a request for additional evidence. Therefore, it is very important that the I-130 petition filed by the relative (sponsor) must be properly submitted with proof of relationship to the foreign national relative (beneficiary) with supporting documents, such as birth certificates, marriage certificates etc. The I-130 petition has to be filed by the sponsor in the U.S. at the USCIS office having jurisdiction over the sponsor’s place of residence in the United States.

 

1. GETTING YOUR GREEN CARD IN THE UNITED STATES If your relative is already in the U.S. legally, then in some cases you can simultaneously file for adjustment of status for permanent residence for your relative. The procedure begins by filling out and sending in Form I-130, along with the I-485 “adjustment of status” packet. You should be extremely careful when you consider applying for adjustment of status. If you are out of status or illegal, there is a likelihood that your green card may be denied and you may be placed in deportation (now known as Removal Proceedings). There are limited exceptions for spouses and children under twenty-one who are sponsored by U.S. Citizens. Please do not apply if you are illegal before consulting with a qualified immigration attorney.

Once the I-130 and adjustment of status packet are submitted, if USCIS needs additional information, the USCIS will send you an RFE (Request for Further Evidence) asking for more evidence. Follow the instructions in the letter and provide the information it is seeking. The petition will not be processed until all of the information is received. Once you provide the USCIS with all the required information, in most cases you will be sent a notice to attend an interview at the local USCIS office having jurisdiction over your case.

 

2. GETTING YOUR GREEN CARD OUTSIDE THE UNITED STATES (VISA PROCESSING)

Petitions for immediate family members (for example, a spouse, or unmarried children under twenty-one) have immediate priority status and may take approximately eight months to a year to get processed. For other relatives, it may take several years to obtain permanent U.S. residence.

Once the I-130 relative petition is approved, your foreign relative’s case will be first transferred to the National Visa Center, wherein you will be required to provide all the information about your relative(s) who intend to come to the United States, as well as an affidavit of support from your end. The purpose of the affidavit of support for the Immigration Services is to ensure that you will be able to provide financial support to your relatives, once they come to the United States. After the National Visa Center is satisfied with all the documents and fees you have submitted, the petition will be forwarded to the United States Consulate having jurisdiction over your foreign relative’s residence abroad. Thereafter, the Consulate will notify you or your relative for an interview for permanent residence accordingly. An immigrant visa is valid for six months from the date it is issued.

For immediate family members (husband, wife, mother, father, unmarried minor child) of U.S. citizens:

  1. Immediate relatives do not have to wait for a long time. A visa number will be issued right away when the petition is approved, the petition will be transferred to the National Visa Center, and then finally to the Consulate. The average time for processing cases for immediate relatives is approximately one year.
  2. It is suggested that you get a medical exam and certain vaccinations before you go to the interview. Ask your local U.S. Consulate for the requirements.

For non-immediate relatives: Non-immediate relatives are brothers and sisters of U.S. citizens, married sons and daughters of U.S. citizens, unmarried sons and daughters of permanent residents and U.S. citizens, and unmarried sons and daughters who are over the age of twenty-one of U.S. citizens and permanent residents. There is a limited yearly amount of immigrant visas issued to alien relatives. The Department of State has to determine if an immigrant visa is available. When an immigrant visa number becomes immediately available to you, it means that you can apply to have one of the immigrant visa numbers assigned to you.

Visas are processed in the order in which petitions are properly filed and accepted by the USCIS. A properly filed petition means that the petition is fully completed, the fee is paid, and it is submitted with all appropriate supplemental documents.

How long will it take? It may take several years for non-immediate relatives between the time the petition is approved to the time the visa number is given. Also, the State Department limits visa numbers for different countries. So, if your country has a long list of people waiting for immigrant visas, it will be a long delay before you get a visa number. You can check with the U.S. Department of State to get a report on the dates when the immigrant visas are available.

 

Visa Number Issuance Preference

The non-immediate relatives must wait for a visa to become available according to the following preferences:

  • First Preference: Unmarried, adult sons and daughters of U.S. citizens. Adult means 21 years of age or older.
  • Second Preference: Spouses of lawful permanent residents, and the unmarried sons and daughters (regardless of age) of lawful permanent residents and their children.
  • Third Preference: Married sons and daughters of U.S. citizens, their spouses and their minor children.
  • Fourth Preference: Brothers and sisters of adult U.S. citizens, their spouses and their minor children.

Do I have to apply for an Immigrant Visa Number?

No. When the petitioner is notified that your visa petition is approved, USCIS will send the approved visa petition to the Department of State’s National Visa Center, where it will stay until an immigrant visa number is available. You will be notified when the Center receives your approved petition, and also when the visa number becomes available. Only contact the National Visa Center if your address has changed or if there is a change in your personal situation that may affect your eligibility for the immigrant visa.
The address is:
The National Visa Center
32 Rochester Avenue
Portsmouth, New Hampshire 03801-2909

APPLYING FOR AN IMMIGRANT VISA

If the applicant is in his/her home country: 
If you are outside the U.S. when the immigrant visa number becomes available to you, you should go to the U.S. Consulate where you live to complete the processing. Schedule and make an immigrant visa interview, complete medical and fingerprint requirements, get your visa stamped and wait for your green card.

If the applicant is ALREADY in the U.S. legally: If you are in the United States already, you may apply to change your status to a lawful permanent resident, after a visa number becomes available for you.

At BLACKMAN & MELVILLE, P.C., we understand the complexities of deportation. In order to adequately defend your rights before an Immigration Judge, call BLACKMAN & MELVILLE, P.C. at (718) 576-1646 for a  personal consultation.

Edited, Supplemented and Republished by Nigel E. Blackman, Esq. for www.bmlawonline.com

U-VISA

OUT OF STATUS? 

    This article was originally researched and written by attorney at law, Raquel M. Gayle, Esq., during her association with BLACKMAN & MELVILLE, P.C.  The article is being edited and republished for reprint by Nigel E. Blackman, Esq.

 

YOU MAY QUALIFY FOR A U-VISA

 

An often unfamiliar but perfectly legitimate way in which to adjust the status of an immigrant seeking to obtain legal status in the United Sates — or even facing possible deportation— is the U-Visa.

 

WHAT IS THE U-VISA?

 

The U-Visa was created as part of the Victims of Trafficking and Violence Protection Act of 2000, became a valid Visa on October 17th, 2007, and is available only to immigrants who have been victims of serious crimes.

 

The government’s interest in providing U-Visas to out of status immigrants is two-fold: (i) to provide for the protection of victims of serious crimes (given that many immigrants who fall victim to a crime are reluctant to involve or otherwise cooperate with police for fear of revealing their unlawful status); and (ii) to assist in the prosecution of criminal perpetrators.

 

If a victim is successfully granted a U-Visa he or she may become a legal permanent resident in just three years after receipt of the visa benefit. See Lee v. Holder, 599 F.3d 973, 975-76 (9th Cir. 2010) (noting that a U-Visa may be extended by certification of a law enforcement agency that the victim is needed in connection with further investigation and/or prosecution of the crime, and also that U-Visa applicants may apply for legal permanent residence after three years of receipt of the U-Visa and for naturalization at the end of five years). Moreover, immediately upon approval of a U-Visa, an immigrant is authorized to accept employment in the United States.

 

ARE U ELIGIBLE?

 

To qualify for a U-Visa you must meet certain statutory requirements, including being a victim or a victim of an attempt of one of the following crimes:

 

  • Domestic violence
  • Incest
  • Abusive sexual contact
  • Obstructing Justice
  • Felonious Assault
  • Blackmail
  • Abduction
  • Torture
  • Female Genital Mutilation
  • Extortion
  • Kidnapping and
  • Peonage (the practice of holding a person in servitude or partial slavery, as to work off a debt or serve a penal sentence).

 

The crimes listed above are considered “qualifying crimes” for eligibility for the U-Visa and you must have suffered physical or mental abuse in connection with one of the applicable crimes to be eligible.  Furthermore, the crime must have taken place in the United States, violate U.S. law, and your information about the crime must advance the prosecution or at least possibly lead to prosecution of the crime.  Finally, certification by a law enforcement agency that you qualify for a U-visa is at the discretion of the law enforcement agency where the request is made and no more than 10,000 U-visa applicants may be awarded a U-Visa per fiscal year. Spouse, children and other qualifying relatives who apply under the primary U-Visa’s application are not subject to the 10,000 person limitation. See 8 CFR 1101(a)(15)(U)(iii).

 

HOW IS THE U-VISA APPLICATION PROCESSED?

 

Processing of the U-Visa application involves first having a law enforcement agency certify that the crime as eligible under the U-Visa requirements and second that the applicant has been cooperative and helpful in the investigation and prosecution of the crime.

 

Next, the applicant must petition for certification by completing Form I 918.  The application should include the requisite legal forms, evidence of the crime and all other outstanding but required documents. There is no filing fee for the U-Visa application regardless of your income. The submission should include, among other documentary evidence, the petitioner’s own statement regarding the criminal activity, describing the particulars of the applicant’s criminal victimization.

 

Filing the U-Visa application does not give the applicant any immigrant benefits unless the actual petition is approved; and USCIS processing can take up to six months.

 

If you are in removal proceedings, there exists strong case law discouraging removal of U-Visa applicants pending the processing of their application.  See Ramirez Sanches v. Mukasey, 508 F3d 1254 (9th Cir. 2007) (directing the Board of Immigration Appeals to reopen the case of an immigrant in removal proceedings because of his outstanding U-Visa application—despite the fact that the offense listed on the U Visa application was not charged in the underlying complaint).

 

USCIS permits consular processing of U-Visa applicants for individuals residing outside of the United States.

 

The U-Visa is a great tool for assisting undocumented immigrants in their adjustment of status process.

 

HOW DO I GET MORE INFORMATION?

 

If you think you or someone you know may qualify for the U-Visa, contact the Immigration Law Department of Blackman and Melville, P.C. at inquiry@bmlawonline.com or call 718-576-1646.

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