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| Temporary or nonimmigrant visas are available for people entering the United States for a limited period of time and for a specific purpose. In most cases, people applying for nonimmigrant visas must demonstrate that they intend to leave the United States when their visa expires and that they do not intend to immigrate. However, people who qualify for H-1B (professional worker), L-1 (intra-company transfers) visas, and possibly E-2 investor visas are exempted from this requirement. | |||
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Although nonimmigrant visas are considered
temporary, many of them are available for a
number of years. Unlike immigrant visas, most
nonimmigrant visas are not subject to any
numerical limits.
A Visas - Diplomatic Personnel THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996
By far the biggest new development in our
immigrations laws occurred last fall with the
passage of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (the "New
Law"). The New Law targets those people who have
entered the United States illegally and also
those who have overstayed their visas.
Generally, those with valid visas are not
affected by the New Law. Below is a summary of
some of the changes made by the New Law. Many of
the changes made by the New Law are effective
April 1, 1997. Others are already in effect.
Please consult with Mr. Perkins regarding
whether the New Law will effect you.
2. New Requirements for All Immigrant Visas: A
new vaccination requirement is in effect
immediately for all those applying for an
immigrant visa (Green Card, Permanent Residence)
after September 30, 1996
3. No Third Country Visa Processing for Out of
Status Applicants: Anyone who overstays a visa,
for even one day, is barred from obtaining a new
visa at a 3rd country post (e.g., Mexico or
Canada), effective immediately. Such persons
must go back to their home country to process.
For example, people whose visas had expired used
to go to U.S. embassies and consulates in Mexico
or Canada to obtain an H-1B professional working
visa. They can no longer do this.
4. New Restrictions on Federal Court Review of
INS Actions: The New Law bars judicial review of
most discretionary decisions of the INS and most
crime-related grounds of deportability.
5. New Deportation Proceedings, Now Called
Removal Proceedings: Exclusion and deportation
proceedings will be eliminated, and one new
combined "removal procedure" will be created as
of April 1, 1997. New 5 year, 10 year, and
lifetime bars to reentry after
removal/deportation will take effect April 1st.
6. Seven year " Suspension of Deportation" is
Eliminated, Replaced by Stricter "Cancellation
of Removal": The New Law eliminates "Suspension
of Deportation", where a person in deportation
proceedings could terminate those proceedings
and get permanent residence if: (1) they were in
the US for seven years; (2) they had good moral
character; and (3) they could demonstrate
extreme hardship to themselves, or their
relatives. The New Law's "Cancellation of
Removal" provision, which replaces "Suspension
of Deportation" now requires 10 years physical
presence and "exceptional and extremely unusual
hardship" to close family members who are U.S.
citizens or permanent residents (have a "green
card"), not to the alien him/herself.
7. New Deadlines For Those Filing Asylum
Applications and New Summary Exclusion
Procedures: On April 1, 1997, asylum applicants
who have not applied for asylum within one year
of entering the U.S. will be barred from
applying, and all who arrive with fraudulent or
no documents may be subject to summary exclusion
at all ports of entry.
8. New I-9 Restrictions: The number of documents
acceptable for verification will be greatly
reduced, effective on a future date to be set by
the Attorney General. Employees seeking to prove
discrimination in the verification process will
be required to show that employers intended to
discriminate.
The effect of the Act is still unclear and many
of its provisions are the subject of litigation.
If you are interested in efforts to change the
effects of this law, call or write to:
American Immigration Lawyers Association
Immigrant Visas
People who immigrate to the United States are
initially granted what is termed "permanent
residence". In most cases a permanent resident
may only apply to become a United States Citizen
five years after becoming a permanent resident.
Permanent residents must comply with U.S. laws
during their stay and their residence may be
revoked under certain circumstances, exposing
them to deportation. For further information
about this topic, you should consult with Mr.
Perkins.
2. EMPLOYMENT BASED IMMIGRATION is another
common avenue to immigrate to the United States.
Follow this link to find out ways to obtain
permanent residence based upon sponsorship by an
employer, a church or even by sponsoring
yourself (this last option is only available in
special cases).
3. INVESTMENT BASED IMMIGRATION is still another
way to immigrate to the United States. Follow
this link to find out how to obtain permanent
residence based upon investment in an enterprise
located in the United States.
4. ASYLUM/REFUGEE STATUS is available to those
with a well-founded fear of persecution based
upon race, religion, membership in a particular
social group or political opinion. Follow this
link to find out more about asylum in the United
States.
5. OTHER WAYS TO IMMIGRATE exists for juveniles,
government workers, and there is also an annual
visa "lottery" which many people exist for
juveniles, government workers, and can apply
for. Follow this link to find out more about
these other ways to immigrate.
Family Based Immigration
An intending immigrant can qualify for two
categories of family-based immigrant visas: 1. as an immediate relative of a U.S. citizen; or
2. under one of four preference immigrant
visas.
The type of preference visa an intending
immigrant is eligible for depends upon two
factors:
A. whether the person sponsoring the immigrant
is a U.S. citizen or a lawful permanent resident
and;
B. the closeness and dependency of the
relationship between the intending immigrant and
his/her relative in the United States (i.e. son,
brother, spouse, etc.) 2. THE FAMILY PREFERENCES
CATEGORIES A. The First Preference The first
preference includes all unmarried sons or
daughters of U.S. citizens, including sons and
daughters over 21 years of age. B. The Second Preference The Second Preference is broken into two categories: i. The spouse or child (unmarried and under 21) of an alien lawfully admitted for permanent residence; and ii. The unmarried sons or daughters (21 or over) of immigrants lawfully admitted for permanent residence. The "battered spouse" of a permanent resident may self-petition even if he/she is no longer married. There are different waiting periods for eligibility to apply for visas in the above categories. See the new developments section for the likely waiting time for these visas. C. The Third Preference The third preference includes married sons or daughters of U.S. citizens.
D. The Fourth Preference The fourth preference
includes the brothers or sisters of U.S.
citizens, if the citizen is at least 21 years
old.
1. there are no U.S. workers who are able,
willing, qualified and available to work at the
place of employment, and
2. that employment of the immigrant will not
harm wages and working conditions of U.S.
workers. The employer must advertise the job and
try to recruit U.S. workers in good faith. If no
U.S. workers meet the criteria mentioned above
and the job description is not unduly
restrictive, the employer is eligible to receive
a labor certification from the U.S. Department
of Labor. An immigrant visa petition may then
flied with Immigration and Naturalization
Service. Set forth below is an outline of the
process. The labor certification process is
highly regulated and extremely complex. It is
strongly recommended that you seek advice from
Mr. Perkins before attempting to obtain a labor
certification.
2. SECOND PREFERENCE IMMIGRANTS, need a labor
certification, except in certain circumstances.
They include: A. Advanced Degree Professionals.
To find out more, click here. B. Immigrants With
"Exceptional Ability". To find out more, click
here. C. Second Preference Immigrants Who Do Not
Need a Labor Certification. They include: i.
Immigrants In The "National Interest". To find
out more, click here. ii. Immigrants In
Pre-Certified Jobs, Which Do Not Require Labor
Certification. To find out more, click here.
3. THIRD PREFERENCE IMMIGRANTS, always need a
labor certification. They include: A. Skilled
Workers. To find out more, click here. B.
Professional Workers. To find out more, click
here. C. Unskilled Or "Other" Workers. To find
out more, click here.
4. FOURTH PREFERENCE IMMIGRANTS, do not need a
labor certification. They include traditional
religious workers such as priests, rabbis,
ministers, cantors, nuns and monks, as well as
professionals working for religious
organizations. To find out more, click here.
5. FIFTH PREFERENCE IMMIGRANTS, are immigrant
investors. To find out more, click here to go to
the immigration through investment section. 2. Nonimmigrant, E-2 Investors E-2 visas are for owners and investors in businesses in the United States. An E-2 is a non-immigrant visa that may be granted for investments of less than $500,000. People may hold this visa for an indefinite period of time and after they accumulate more than $500,000 they may be eligible for immigrant visa. The E-2 visa is also available to certain employees of investors. An investment must meet several criteria in order to qualify for an E-2 visa. These criteria include: A. showing that "substantial" investment funds are available and committed to the investment; B. the investment must be in an active business as opposed to passive investment such as purchasing a home, C. at least 50% of the business must be owned by an applicant from a country which has a treaty with the United States; and D. the investment must create enough profit to provide a living for more than just the applicant and his/her family. It is often useful to show that the investment will create new jobs, although this is not necessary. There is no minimum amount of investment necessary to obtain an E-2 visa, and whether an amount will be considered "substantial" depends on the type of business involved, the number of jobs created, the alien's personal assets, etc. In one reported case, a $15,000 investment was approved. However, in most cases this will not be enough. Loans, as long as they are not secured by assets owned by the business, are counted towards the investment as are non-cash assets which i.e., inventory, intellectual property, real estate, etc. Given the variety of factors that are considered in determining whether an investment is "substantial", it is strongly recommended that the prospective investor seek legal advice from Mr. Perkins. Employees of E-2 companies may be granted E-2 visas if they are or will be engaged in duties that are executive, managerial, or supervisory in character. If employed in a minor capacity, the employee may be granted E-2 visa if he or she has special qualifications that make the services to be rendered essential to the enterprise. The "temporary" E-2 investor visa can be renewed as long as the business continues to exist and the investment remains "substantial." The E-2 visa is available for people from the following countries:
· Argentina Asylum
In order to establish a claim for asylum in the
United States, applicants must show that they
have a "well-founded fear of persecution." The
persecution that is feared must be related to
the applicant's race, religion, nationality,
membership in a particular social group, or
political opinion. Lately, the INS has expanded
its definition of social group to include gender
and, in some cases sexual orientation. There is
also some legal authority to the effect that a
family is a social group. Past persecution, in
itself, may also form the basis of an asylum
claim. The law of asylum is highly complex and
now decisions are being made by the INS and the
courts on a daily basis. Accordingly, it is
highly recommended that an asylum applicant seek
advice from Mr. Perkins.
2. The Effective Presentation of an Asylum Case
While the facts are extremely important in any
asylum case, an effective presentation of the
case can mean the difference between success and
failure. There are several elements which can
assist an applicant in effectively presenting
their asylum case. They are: A. The Statement of
the Applicant The statement of the applicant
should set forth in detail the applicant's past
history of persecution and threats of
persecution and the applicant's basis for
fearing further persecution should he or she
return to his or her home country. The
declaration should be very broad and should , in
essence, be a life story of the applicant, and
his or her opinions and activities. B.
Affidavits and Letters Supporting affidavits or
letters should be included as part of the
application if available. These documents should
establish the nature of the applicant's opinions
and activities, and the persecution that he or
she faces as a result of these opinions or
activities. Affidavits are obviously better
proof than letters since, they are sworn
statements. C. Newspaper Articles, Pamphlets,
Magazines, and other Published Materials
Newspapers, magazines, and other published
materials should also be submitted as part of
the application. It is best that these items be
as recent as possible, support the applicant's
recollection of events in their home country,
and provide an objective basis for the
applicant's belief that they would be persecuted
if returned to their home country. D. Other
Evidence The applicant should also try to
determine if there is other evidence which might
be used to win his or her case. For example, in
a case once prepared in my office, the applicant
was able to obtain a secret list written by his
opponents which contained his name. We were able
to show that people on the list were persecuted
and that the applicant faced persecution as
well.
2. Special Immigrants Juveniles - Unmarried
children (under 21) are classified as Special
Immigrant Juveniles and entitled to petition for
permanent residence if: A. they are declared
dependent on a U.S. juvenile court and been
deemed eligible by that court for long term
foster case, and B. it has been determined in an
administrative or judicial proceeding that it
would not be in their best interests to be
returned to the country of nationality or
country of last habitual residence. INS
regulations also provide that Special Immigrant
Status may be granted even if the child has been
placed for adoption. One noteworthy item about
special immigrant juveniles is that even after
they obtain citizenship, they may not sponsor
their biological (natural) parents for
immigration to the United States. 3. Certain Current and Former United States Government Employees A. Generally B. A foreign employee of the United States government abroad who has served faithfully for at least 15 years, may be eligible for special immigrant status if i. the principal officer of a Foreign Service establishment finds that there are exceptional circumstances and recommends granting special immigrant status; and the ii. The State Department approves the recommendation and finds that it is in the national interest to grant special immigrant status. C. Employees of U.S. Consulate in Hong Kong and of the US Government or Canal Government in Panama D. In light of the imminent transfer of Hong Kong to China in 1997, employees of the United States consulate in Hong Kong may petition for special immigrant status under certain different from those described above. The Panama Canal was transferred from the United States to Panama pursuant to a treaty signed in 1977. To deal with some of the expressed concerns regarding the personal safety of some residents, special immigrant status was made available for former employees of the Panama Canal Company, Canal Zone Government, United States Government under certain circumstances. For further information regarding the conditions under which U.S government employees from Panama or Hong Kong may obtain special immigrant status, seek advice from Mr. Perkins. 4. Certain Foreign Medical Graduates Special immigrant status is available, by means of a "grandfather clause", to certain foreign physicians who have practiced for a long period of time in the United States. In order to qualify for permanent residence on this basis a physician must: A. Fully and permanently licensed to practice medicine in a State in the U.S. on or before January 9, 1978, and were practicing in a State on that date; B. Entered the U.S. as a H or J nonimmigrant prior to January 9, 1978; and C. have continuously practiced medicine since their date of entry. It is important to note that a variety of immigration options may be available to the many foreign medical graduates who do not qualify for special immigrant status under the foregoing provision. If you are interested in learning about these options, consult with Mr. Perkins. 5. Certain Officers of International Organizations and Their Families
A. Permanent residence is also available for
certain officers and employees of international
organizations who are here on temporary G-4 or N
visas. (See the nonimmigrant visa section for a
brief discussion of G-4 and N visas) A retired
officer or employee of an international
organization may be entitled to permanent
residence if: i. while maintaining G-4
nonimmigrant status, they have resided and been
present in the United States for periods
totaling one-half of the seven years before
applying for permanent residence and for a
period or periods aggregating at least 15 years
before his or her retirement from the
international organization; and ii. he or she
applies for permanent residence no later than
six months after his or her retirement or six
months after May 25, 1994, whichever is later.
B. Permanent residence may be granted to the
unmarried son or daughter of an officer or
employee, or former officer or employee of a
designated international organization who: i.
While maintaining G-4 or N nonimmigrant status,
has resided and been physically present in the
United States for periods totaling at least
one-half of the seven years before the date they
apply for permanent residence and for a period
or periods aggregating at least seven years
between the ages of 5 years and 21 years; and
ii. applies for permanent residence no later
than his or her 25th birthday or October 24,
1988, whichever is later.
C. The surviving spouse of an officer or
employee of a designated international
organization may also qualify for permanent
residence if: i. while maintaining G-4 or N
nonimmigrant status, they have resided and been
physically present in the United States for
periods totaling at least one-half of the seven
years before they apply for permanent residence
and for a period or periods aggregating at least
15 years before the date of death of such
officer or employee; and ii. They apply for
permanent residence as a special immigrant no
later than six months after the officer of
employee's death or October 24, 1988, whichever
is later.
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| Canadian Immigration |
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Canadian Immigration Research Institute http://www.immigrationvisa.org/immigrating_to_canada.htm
Optimex Canadian Immigration http://www.canadianimmigrationlaw.net/
Canadian Immigration http://www.cic.gc.ca/english/index.html
Immigration and Refugee Board of Canada http://www.irb.gc.ca/index_e.stm
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