Monthly Archive for March, 2011

What happens when your spouse is an illegal immigrant? – I-601 Waiver – Part 2

Published in I-601 Waivers, March 17, 2011

Step 2

Once the national visa center receives the appropriate documents and completes processing of your case, they will transfer the case the United States embassy in the country of the foreign national. At this point, an interview at that embassy will be set. There usually is quite a long waiting period involved. The interview at the embassy usually takes place one year after the marriage petition has been filed.

If the foreign national travels back to their country to appear for the interview, they will immediately be barred from entering the US for 10 years, if they have overstayed for more than one year. Consequently, the consulate will deny their visa, which is a prerequisite for becoming eligible for an I-601 waiver.

The waiver application cannot be submitted before the Immigrant visa has been denied.

That I-601 hardship waiver is based on the hardship to the United States citizen spouse.  You must prove that the US citizen spouse will face extreme hardship which depends on several factors  (please see our I-601 hardship waiver articles  at www.ranchodlaw.com for these specific factors). Simply stating that you miss your spouse greatly or will be lonely are not  good enough reasons for a hardship waiver.

This is one of the best ways for those who have entered without a visa (EWI), who are married to a US citizen, to obtain a green. They have to leave the country, go through the waiver process and re-enter the United States with an immigrant visa.  However, if a relative or employer previously filed a petition on your behalf you may be eligible for 245i.

Applying for an I-601 Hardship Waiver can be a very time consuming and confusing process.

Please contact the Ranchod Law Group with offices in San Francisco, Santa Clara, and Sacramento, serving clients nationwide. You can call us at 800-753-1399 if you have questions regarding the I-601 hardship waiver.

What happens when your spouse is an illegal immigrant? – I-601 Waiver

Published in I-601 Waivers, March 15, 2011

Typically, when a US citizen marries a non-immigrant – a foreign national who is inside the United States legally, the process does not require a I-601 hardship waiver.   This process of obtaining a green card is called “adjustment of status” and is handled by the US immigration (USCIS) inside the US.

If your spouse has entered the United States illegally (entry without inspection), we have a whole different issue.

One possible scenario is that somebody entered the United States legally with a visa, but overstayed. When such a person marries a US citizen, they can usually adjust their status within the country, if they can prove, that they entered the US legally.  (There are exceptions to this rule and you should consult an experienced immigration attorney if you are out of status.  Additionally, the law has recently changed if you have entered on a visa waiver program but overstayed).

This is different for people, who enter the United States without inspection. They do not have the option to adjust their status within the United States and become legal, even if they get married to a US citizen. For them, the best option to obtain a green card is to apply for an I-601 Waiver. For this, they have to leave the country, get the waiver approved and re-enter the United States on an immigrant visa.

Following is an outline of the process you have to go through, if you are in this category and want to become a legal resident:

Step 1: File a Marriage Petition

First of all, you have to file a marriage petition. This petition is filed by completing the I-130 form and appropriate supplemental documentation.

Once the petition is filed and approved, the case will be sent to the national visa center.

We will discuss the additional steps in a subsequent blog post.  Please contact our offices in San Francisco, Santa Clara and Sacramento, California at 415-986-6186 to learn more about how to obtain a I-601 hardship waiver.

PERM Labor Certification Explained

Published in PERM Labor Certification, March 13, 2011

Some people who want to immigrate to the Unites States through their job are required by law to obtain a labor certification from the US Department of Labor. This applies to immigrants who want to live permanently in the US.

What is the labor certification?

The labor certification PERM process requires companies to first recruit US citizens before offering the position to an international worker.

When hiring a foreign national, the employer has to first prove that there are no qualified United States workers available, willing or able to perform the duties laid out in the job description.

The employer is also required to pay the foreign national the prevailing wage set forth by the Department of Labor.

Who needs to get a labor certification?

Anybody applying for an EB-3 employment green card and most people applying for EB-2 green card, unless they can get a National Interest Waiver, is required to obtain a PERM Labor Certification. Applicants for other types of employment-based green cards, like EB-1, don’t need to get this certification.

There are some positions for which there is a shortage of United States workers. If you are applying for one of those types of jobs, you also don’t need to get a PERM labor certifications. These positions include certain nursing positions and jobs as physical therapist.

Please contact us at 415-986-6186 to find out if you qualify for permanent residence based on the PERM process and visit our PERM labor certification page.

Study about low-skilled immigration and the US economy

Published in Immigration Reforms, March 11, 2011

There is always a lot of discussion about the negative impact on the US job market by the increasing number of low-skilled immigrants. I found an interesting study, that analyses the problem in detail.

A recent study by Professor Harry J. Holzer from Georgetown University, indicates that low-skilled immigration has little impact on the wages of US citizens.

The question is raised as to why the impact of the large influx of less-educated workers on the labor market of US workers is so small.

Professor Holzer suggests three possible answers for this:

1.     Immigrants are not only producers, but consumers as well. They generate additional product demand and therefore labor demand.

2.     Immigrants are not perfect substitutes for native-born workers and mostly compete with other immigrants within the same industry.

3.     Most low-skilled jobs would likely be replaces by capital and technology if the work force was not available, instead of being filled by low-skilled native born workers.

Professor Holzer goes into further detail and analyses the costs and benefits of low-skilled immigrants for US employers, consumers and the economy at large.

He emphasizes the many positive impacts that the immigrant work force makes on the US economy.

Professor Holzer then analyses various immigration reform policies and raises the question, what his study means for them. He offers modifications to the provisions included in the mentioned bills that would raise the net benefits they provide to both native-born Americans and immigrants.

The study is very interesting and throws light on many immigration issues. I invite you to reed it here: Does Low-Skilled Immigration Hurt the US Economy

E-2 Investor Visa Explained

Published in E2 Visas, March 10, 2011

The E-2 visa is an attractive option for foreign nationals living in countries with which the United States has a treaty relationship, and who want to come to the US to invest their money. One big advantage of this visa over the EB-5 investor Green Card is, that there is no minimum required amount that has to be invested. Usually, the minimum required amount to qualify for the EB-5 Green Card is 1 million USD.

What are the requirements for obtaining an E-2 Investor Visa?

  • You are from a country that has an appropriate treaty with the United States
  • You have invested a substantial amount of capital in a bona fide US enterprise
  • Your objective for being in the United States is to develop and direct this business
  • You intend to leave the United States at the end of the E2 Visa

Investment means, that the investor puts his capital at risk with the goal of generating profit. The investment in the company has to be substantial to show that the investor’s interest is sincere. The government will check the amount of the investment in proportion to the value of the business to determine, if the investment actually is substantial.

The investment must be personal business capital and subject to loss, if the business fails. It must be irrevocably committed to the business.

A substantial donation to a non-profit organization will not qualify for an E-2 treaty investor visa.

It is possible for your spouse and children to accompany you on the E2 Visa.  E2 status is valid for two years if you apply within the US and can be extended.  If you apply for the E2 visa outside of the US the E2 visa may be valid for up to five years depending on the the specific US Embassy.

For more information, please visit our E-2 Investor Visa page.

EB-1 Employment Green Card Explained

Published in Green Card, March 4, 2011

The EB-1 employment green card is reserved for workers with extraordinary abilities, also called priority workers. It is divided into three groups:

1.     Workers of Extraordinary Ability

What is the definition of Extraordinary Ability?

Extraordinary ability is defined as a level of expertize attained by only a small percentage of people who have risen to the top of their field. To qualify for this, the applicant must show exemplary skill and ability in the areas of art, science, business, athletics or education and be internationally recognized. The applicant must prove this by either having one a major international award or by showing documentary evidence that he or she is an outstanding leader in a particular field.  To learn more about the documentary evidence required for the EB-1 category visit our EB1 Employment Green Card article at http://www.doctorsimmigrationlaw.com/green-cards/eb-1-extraordinary-ability

A worker with extraordinary ability does not even need to have a specific job offer to be able to apply for a green card.

2.     Outstanding University Professors and Researchers

This option is for people who are internationally recognized as outstanding in a particular academic field.

Outstanding professors and researchers do need to have a job offer from a university or private institution to be able to apply for an EB-1 green card.

The applicant must have at least three years of experience of teaching or researching in his or her particular field.

3.     Multinational Executives and Managers

Multinational executives and managers are people, who have worked outside of the United States for at least one out of the past three years and who are transferred to work for the same international company in the US.

The applicant must have worked as a manager or executive for the company before having come to the United States, and must continue doing so within the country.

What are the advantages of the EB-1 employment green card?

The applicant does not need to get a PERM labor certification. For information on this, please refer to my last article or the PERM labor certification page.

For more information, please visit our EB-1 Green Card page.