Immigration Articles

Green Card Through Marriage

Obtaining Permanent U.S. Residence Through Marriage When a United States Citizen (USC) or Lawful Permanent Resident (LPR) marries a resident of another country, the foreign spouse can typically receive a Green Card, granting him or her permanent U.S. residence. In order for the foreign spouse to receive LPR status, the couple must follow the proper procedures, and the foreign spouse must meet certain qualifications. Obtaining a visa and LPR status through marriage has great advantages, one being the absence of statutory limitations (or caps) on the number of these visas that will be issued to immediate relatives each year. Immediate relatives are the spouses, parents and unmarried children under the age of 21 of U.S. citizens. A spouse of a LPR and any unmarried children under the age of 21 are subject to the annual visa cap and may qualify for a Green Card once a visa becomes available to them in the family-based second preference group. Valid Marriages for Obtaining LPR Status A couple may marry within the United States or abroad, so long as the marriage is legal and valid where it occurred, and is a type of marriage that U.S. Citizenship and Immigration Services (USCIS) will recognize.   Ultimately, the couple will need to demonstrate theirs is a bona fide marriage; not one entered into for the purpose of obtaining immigration benefits. The application process varies depending on whether the foreign spouse is already in the U.S. or needs a visa in order to travel here. In either scenario the USC or LPR must begin the process by filing an I-130 Petition for Alien Relative with USCIS. Generally approval of the I-130 requires the petitioning USC or LPR spouse to provide by a "preponderance of the evidence" indications of a valid marriage, including (but not limited to) proof that: The petitioner is a U.S. citizen or qualifying LPR; Any previous marriages of petitioner and beneficiary (foreign spouse) have been legally dissolved; AND Any and all evidence tending to demonstrate the marriage is bona fide and valid, including items such as: the marriage certificate, leases or bank accounts held jointly by the couple, affidavits of friends and family members attesting to the validity of the marriage, photos and evidence of a typical marital relationship, etc.

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Using the B-1 Visa in Lieu of the H-1B Visa: Pros and Cons

Normal H-1 requirements: The H-1B visa is issued to those skilled foreign workers who have a bachelor’s degree or higher in the specialty occupation for which they are being issued the visa.[1] US employers sponsor the foreign worker and file a labor condition application (LCA) with the U.S. Department of Labor, and the employer  makes several attestations in the LCA, mainly the following: the H-1B worker is being paid the same wage as U.S. workers who have similar experience and qualifications for that specific employment;  employment of the non-immigrant does not adversely affect working conditions of other workers similarly employed;, and notice of filing the application was provided to workers employed in the occupation at the place where the H-1B worker would be employed.[2] Problems with H-1 visa: Practitioners and applicants for the H-1B visa find that the most salient problem with the H-1B visa filing is the annual cap. Currently, the visa cap is set at 65,000, with an exemption for 20,000 nonimmigrants who hold master’s degrees or higher.[3]  The problem is that the number of applicants greatly outstrips the number of available visas, often resulting in the visa cap being filled on the very first days when filings are accepted.[4] Therefore, potential H-1B applicants may try to explore alternative methods to enter or stay in the US, without having to deal with the visa cap. One possibility is that worker may come to the US under a B-1 visa. However, this approach is somewhat controversial and not yet widely accepted or understood within the different the government agencies.  Consular posts may not know how to properly adjudicate these applications and even if granted, foreign nationals may encounter problems at the port of entry when the Customs and Border Patrol (CBP) officers are not willing to grant them admission.  The United States Citizenship & Immigration Services (USCIS) and its predecessor, the legacy Immigration and Nationality Services (INS), have traditionally been hostile to this visa category and viewed it with much skepticism.  Therefore, employers and foreign nationals wishing to pursue this visa option should understand the requirements and proceed with caution.

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Naturalization 101

NATURALIZATION AND REMOVAL When a non-citizen wants to become a United States citizen, that person must undergo a process known as naturalization. There are many benefits in becoming a U.S. citizen. A U.S. citizen can travel more freely; he can vote; and he can apply for more jobs, including government positions. Citizens are more eligible to apply for public benefits such as full Social Security, Supplemental Security Income, food stamps, and have access to certain loans, mortgages and scholarships. Finally, U.S. citizens would not be subject to deportation or removal proceedings. WHAT IS REQUIRED FOR SOMEONE TO BECOME NATURALIZED? An immigrant must be older than 18, be a permanent resident for 5 years (or 3 years for those who have gained permanent residency through a U.S. spouse), demonstrate good moral character, prove continuous residence and physical presence in the U.S., and be able to read, write and speak basic English (this last requirement may be waived in certain cases such as if the person has a permanent impairment that prevents them from being able to learn and understand English). In addition, the permanent resident must file an N-400, undergo an interview, pass a civics and ethics test, and take the Oath of Allegiance to the United States. WHEN IS NATURALIZATION NOT THE BEST OPTION? Naturalization may not be the best course for every permanent resident. The naturalization application is usually the last time for the immigration officials to review the immigrant’s case and determine both whether the person is eligible to naturalize and whether he is eligible to stay in the United States. Any inconsistencies in the naturalization application, such as evidence of immigration violations, criminal conduct or abandonment of his permanent residence status, may actually subject the immigrant to removal proceedings. Someone who is interested in becoming a U.S. citizen but is not sure of his eligibility should consult with an immigration attorney.

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EB-5 Investor Visa Overview

Twenty two years ago, the United States began to allow investment-based immigration to the US. Investment-based immigration occurs through the EB-5 visa program, which grants conditional permanent residency to immigrants and their families over a two-year period. The immigrant investor must 1. invest $1,000,000 in a new commercial enterprise in the United States, 2.create or preserve at least 10 full-time jobs for qualifying US workers via that enterprise and 3. maintain that business for two years.

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