New York Immigration Lawyer

An alien married to a US citizen can obtain a green card/permanent residency, provided that the spousal relationship is established and the alien spouse qualifies to be lawfully admitted into the United States. However, if the alien entered the United States illegally, section 245(i) of Immigration and Nationality Act provides amnesty for a person who has unlawfully entered the United States. Under that provision, an illegal alien is eligible for permanent residency, provided that, on or before April 30, 2001, he or she filed a visa petition (I-130, I-140 or I-360) with the Immigration and Naturalization Service (INS) or a labor certification application with the Department of Labor (DOL). An illegal alien can also adjust his or her status in the United States by paying a $1,000 penalty assessed for an immigration status violation. However, in order to be eligible for a section 245(i) adjustment of status, each applicant, who submitted an application after January 14, 1998 and before April 30, 2001, must prove that he or she was physically present in the United States on December 21, 2000.

The application procedure, which involves many steps, is initiated by filing various forms and supplemental documents with the United States Citizenship and Immigration Services (USCIS).

Once the required papers are filed, the USCIS will perform a complete background check, including a search for criminal convictions. While the background check is in progress, the USCIS will issue a work permit, after which a fingerprinting appointment and finally the green card interview will occur. During the interview, the immigration officer will determine whether the marriage is bona fide or fraudulent, intended solely to get a green card. The couple must provide the USCIS with evidence of the relationship. If the officer is satisfied, a green card will be granted. However, if the officer is not convinced about the relationship, a detailed second interview, known as a “Stokes Interview” will be conducted, during which the parties will be questioned separately. Their answers will later be compared for consistency. If the applicants have been married fewer than two years, a conditional green card will be issued for two years.

Within ninety days preceding the second anniversary of the issuance of the conditional green card, both spouses must petition to remove the conditional basis of their residency to receive the permanent resident status. Based upon its review, the USCIS may waive the second interview and approve the petition. If not satisfied, another interview of both the alien and the alien’s spouse will be conducted to ensure that the marriage was not entered into solely for immigration purposes.

Permanent Residency Through Marriage To Us Permanent Resident Or Green Card Holder

An alien married to a permanent US resident or green card holder can obtain a green card and permanent residency status by establishing the validity of the marital relationship. The procedure is the same in this instance as when an alien is married to a US citizen, although the green card interview in this instance will take approximately five to six years, and no work authorization card or Social Security number will be issued during that interim period. However, under the Legal Immigration and Family Equity Act (LIFE), a new temporary “V” non-immigrant status allows the spouse and minor children of lawful permanent residents waiting in the United States or abroad to be granted work authorization. To qualify, the green card petition must have been filed before December 21, 2000.

Permanent Residency Through Other Family Members

Green cards can also be obtained through other immediate family members, such as a parent, brother, sister, or child of a United States citizen, The sponsor must be at least twenty-one years old and cannot be the brother or sister of a permanent resident alien. The waiting period can be as long as twelve years, depending upon the age of the applicant.

Permanent Residency Through Fiancée Visa

Once the US citizen and the fiancée are married, they must apply for an adjustment of the status of the spouse of the US citizen to obtain permanent residence status. If they have been married for less than two years when they apply, a conditional green card is granted. After 1 year and nine monthsof receiving the conditional green card, the spouse must apply for removal of the condition to receive a permanent residency card.

Citizenship

A foreign national can obtain citizenship after fulfilling the requirements established by Congress in the Immigration and Nationality Act (INA). This procedure is also known as “NATURALIZATION”. A permanent resident alien, who has a green card for at least four years and nine months, is eligible to apply for U.S. citizenship. However, a permanent resident alien who obtained a green card by marrying a U.S. citizen and remains married to and resides with that US citizen, can apply for citizenship in three years.

In order to become a citizen, a permanent resident alien must have filed his Federal and State tax returns for the past five years, must not have been convicted of any crimes, must be able to read, write, and understand English, and must answer questions about U.S. government and history at the citizenship interview. However, a waiver of these requirements may be granted. The approximate waiting period for the citizenship interview is twelve to fifteen months.

An individual can obtain a waiver of these requirements if the individual on the date of filing:

a) has been residing in the United States subsequent to a lawful admission for permanent residence for periods totaling 15 years or more and is over 55 years of age;
b) has been residing in the United States subsequent to a lawful admission for permanent residence for periods totaling 20 years or more and is over 50 years of age; or
c) has a medically determinable physical or mental impairment, where the impairment affects the applicant's ability to learn English.

Once an individual passes the test, he or she must take the oath of allegiance swearing to support the Constitution and obey the laws of the United States, renounce any foreign allegiance, and agree to bear arms for the armed forces of the United States or perform services for the government of the United States when required.

Permanent Residency Or Green Card Through Employer

A green card can be obtained through a U.S.-based employer. Certain conditions must be met to hire an alien worker.

1. The worker must be needed to perform a highly skilled job that requires a college degree or years of experience;
2. The employer must prove to the U.S. Department of Labor that there is a shortage of U.S. or permanent resident workers available to perform the work, as the result of which the employer needs the alien worker to fill the position;
3. The job must be advertised in a local newspaper for three consecutive days, and all resumes in response to the advertisements must be sent to the Department of Labor. If no qualified U.S. citizen or permanent resident applicant applies, the "Alien Labor Certification" is approved, which allows the employer to file for the alien’s green card;
4. The employer must pay the prevailing wage to U.S. citizens or permanent resident workers who perform the same work; and
5. An alien worker can file for himself only if he falls into the category of an alien of extraordinary ability, such as someone who is internationally famous in the artistic or scientific fields.

Non-Immigrant Visas

H1B:
The H1B is a nonimmigrant visa that permits a foreign professional to enter the Untied States lawfully and work legally for a U.S. employer for a temporary period of time. In order to be eligible for an H1B visa, the following conditions must be fulfilled:

1. A U.S. employer must sponsor the foreign professional;
2. The employer must be involved in a “specialty occupation” that requires special skills in that particular field;
3. The foreign professional must have at least a bachelor’s degree or relevant experience in combination with education; and
4. The employer must pay at least the minimum prevailing wage.

The employer can apply beginning any time after April 1 of each year, and the beneficiary can start working for that particular employer beginning October 1 of the same year. H1B status is initially issued for a period of three years and can be extended for an additional three years. The spouse and children can accompany the beneficiary to the United States on H4 visas as dependents. The dependent family members are not allowed to work in the United States during their stay.

L1:
Many multinational companies transfer foreign employees to and from their operations in the United States to meet the companies’ business needs. To transfer an employee, each employer has to apply for an L1 visa (intra-company transferee) for each such employee. Normally, the processing of an application for an L1 visa takes two to four months. The requirements for the L1 visa are:

1. Each employee must have worked for the same employer for at least one year out of the three years immediately before the L1 application (Form I-129);
2. The employee must continue to provide his services to the same employer in the United States;
3. The employee must work as a manager, executive, or in some other capacity that requires specialized knowledge; and
4. The employer must provide information regarding the nature of its business and its relationship with the U.S. affiliate.

L1 visas for managers and executives are approved for a three-year period with extensions in two-year increments for a total period not to exceed seven years. Employees with specialized knowledge are approved for three years with one two year extension for a total period not to exceed five years. Once the maximum period is reached, the employee must return to the country in which the foreign company is located for at least one year before the employee may reapply for the L1 visa.

The spouse and unmarried minor children (younger than 21 years) can obtain L-2 visas to accompany an L1 visa employee. L-2 visa holders can obtain an employment authorization for a job and are also allowed to carry on a business of their own. L1 visa employees can apply for a green card without going through the process of labor certification. However, dependents of an L1 visa employee must go through the labor certification process to obtain a green card.

What To Do If You Are In The Process Of Being Deported

The LIFE ACT provides certain waivers and protection against deportation for applicants who qualify under the Nicaraguan Adjustment and Central American Relief Act (NACARA) and the Haitian Refugee Immigration Fairness Act (HRIFA). If you are going through a deportation or removal proceeding, you can ask the judge to adjourn your case for another date to permit you to retain an attorney to represent you.

Due to both the complexity and constantly changing aspects of immigration law, it is wise to consult an attorney for advice on immigration matters. If you have questions, please feel free to call.

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Permanent Residency Through Marriage To US Citizen