Our physical offices are currently closed till further notice. Our staff are now working
remotely using the internet. Current clients should contact attorneys and their paralegals using
email. New prospective clients may email us at
consultations@americanvisas.com.
By utilizing remote work options we encourage self-quarantine and social distancing.
Our cloud-based immigration management platform allows both clients and our staff the same
immigration processing abilities at home as in the workplace.
When appropriate we also have video conferencing tools to enable collaborations in a remote
environment.
Thanks you for your patience and understanding. W&S
Oklahoma's Top Listed Immigration Firm established 1966
E. Vance Winningham and Associates is Oklahoma's oldest premiere immigration law firm. The
firms attorney’s offer expertise gained through 85 years of combined experience in the
field of U.S. Immigration Law.
Mr. Winningham became the first Oklahoma lawyer to establish an immigration law practice
in the late 1960s and has devoted the entire resources of the firm exclusively to
immigration related legal matters since 1983.
Biographical Information
Ms. Basey, at the District Attorney's request, rejoined the Oklahoma Country District
Attorney's staff as a result of recent judicial reform initiatives. She will assist the
DA in the administration of special courts (i.e. Mental and Drug, etc.). We hope for her
return to the firm upon conclusion of this assignment. Biographical Information
Though the best way to get reliable and up-to-date
information about the law is by meeting with an attorney, we have published an outline of
immigration law in United States for your convenience
I have friends who are going through...nightmares because of
poor attorney counsel. All I can say is, chosing yours was the best thing i did
in a while. I will have no hesitation in recommending your office to any other
physician inquiring about the process...
Elisa H.
I believe you have been such a blessing, not only for me, but
for my entire family. I know I have asked the same questions over and over
again, yet you never refuse to give me the most adequate answers. ... Once
again, thank you.
Jack Lee
President Hargis of Oklahoma State University referred Mr.
Winningham to me. He has been highly recommended by the President and his wife.
His professionalism is impressive. I recommend all interested parties to at
least have a phone conversation with him to check out his advice. I am more than
lucky to work with him. Personable, Expert, On Time.
Ritchi P.
We deeply want to say thank you to you ... and your legal team
for the great job on handling my PERM case. We are really satisfied with all
aspects of your legal service.
T.C.D.
I had worked in the US for over 4 years and had expected my
company to process my permanent residency paperwork. However, when the time for
renewal approached and I asked about the permanent residency status, I was
informed
that it was my responsibility. It was at this time that I found it appropriate
to
contact an immigration attorney for I was running out of time. After being
referred
by a friend to E. Vance Winningham and Associates, I checked their record online and was
impressed. My first contact with Mr. Winningham was, as expected, very
comforting
and his office started on the paperwork immediately. The staff is very friendly
and
respectful. Most impressive was the fact that the fee I paid for their services
was
not anywhere close to what I had been informed of by other people. If you need
an
immigration attorney, I recommend E. Vance Winningham and Associates for very good
reasons.
J. Hart
I have just had my first week of work at OSU and I think it's
going to be a good three years! I just wanted to thank you ... for all your work
on my behalf.
Farooq M., M.D.
[T]hank you for the excellent and the most efficient service
you have provided... I am lucky and fortunate to have you as my counselors. I
have always bragged about you to my family and friends. You have been sincere,
honest and discrete throughout my immigration process. I would and always will
recommend you and your law firm to anybody in a heartbeat. I would also like to
thank your assistants ... and the rest of your staff who have been of great help
during my immigration process...
Giovanna G
Before meeting Mr. Winningham, I had hired another immigration
lawyer who had been working on my case for
over two years. The previous lawyer charged me a lot of money and, after two
years, instead of receiving
my green card, I got a notification of deportation. I talked to Mr. Winningham
and in less than one year
my deportation notice was cancelled and I received my green card. Mr. Winningham
has always been very
professional and knowledgeable. I cannot think of anyone better qualified to
handle immigration issues.
Surely, he is the best immigration lawyer that we have in this region. I cannot
express how grateful I
am for how diligently he has handled my immigration issues. I would definitely
recommend him to anyone with similar problems.
Only Oklahoma immigration lawyer to receive the highest possible rating (AV) for
both legal ability and ethics from
The Martindale-Hubbell Legal Directory for more than 35 consecutive years.
Published numerous articles including An Overview of Pathways to the Green Card.
Former Chairman of American Immigration Lawyers Association's (AILA) Tri-State
Chapter for Texas, Oklahoma & New Mexico.
Founder of Oklahoma’s oldest Immigration Law Firm.
Legal Advisor to the Guatemalan Consulate for Oklahoma, Kansas, Arkansas, and Missouri.
Kelly K. Basey
Juris Doctor, University of Oklahoma School of Law, 1994
Education
Bachelor of the Arts (Journalism and Spanish), Oklahoma State University, 1988.
Professional Biography
In 2014 appointed by the Federal Government of Mexico to the position of Consulting Attorney for the Mexican Consulate.
Former prosecuting attorney for 12 years in the Oklahoma County District Attorney’s Office.
Founder and Chair of the task Force for the creation of the Mental Health Court which was instituted to take
the circumstances of substance addicts and the mentally ill into special consideration throughout their
judicial proceedings.
Taught international business English in Madrid Spain.
Former member of the Board of Directors for Girl Scouts, Board of Drug Court, and Board of Mental Health Court.
Founding Member of the Juliette Low Society.
Recipient of the Distinguished Public Service Citation from the Oklahoma Psychological Association.
Innovator of the Year Award for the Mental Health Task Force.
Citation of Appreciation from the Oklahoma House of Representatives.
Volunteer jail minister.
Ming Gu
Attorney
Education
Juris Doctor, Oklahoma City University School of Law
Master of Business Administration(with honors), Oklahoma City University Meinders School of Business
Professional Credentials
The first Chinese national to have passed the Oklahoma Bar Exam in April, 2002 and become a member of Oklahoma Bar Association since Oklahoma statehood in 1907.
A practical and seasoned consultant in international trade and foreign direct investment in China since 1995 and in U.S.A. since 2001;
strategic-thinking China practice attorney and counselor in the energy/manufacturing/technology industry since 2002;
and a professional and published linguist in interpretation and translation between Chinese and English.
A former client of E. Vance Winningham and Associates for his immigration matters.
E. Scott Henley
Management and Technical Consultant
Education
Ph.D., University of Oklahoma
Juris Doctor, Oklahoma City University
Master of Science, University of Iowa
D.Ph., University of Oklahoma
Dr. Henley assists with establishing our clients eligibility for various professional
visa categories (H’s, L’s, O’s, EB-1&2). Member of the University of Oklahoma’s Graduate Faculty,
Health Administration and Policy, College of Public Health. Fellow of the American College
of Healthcare Executives. Recipient of OU’s Distinguished Graduate Award. Frequently
lectures, consults, and presents papers nationally. Graduate of United States Army War
College. Serves on the boards of directors of numerous national, regional, and local
organizations.
Enrique Villar Gambetta, Esq.
Consular Liaison
Honorary Counsel of Peru. Serves as Firm’s advisor and liaison
with U.S. consular districts within Latin America. Continues to maintain his law firm in
Lima to which he commutes regularly.
Ken R. Feagins,Esq
Counsel in the firm’s Oklahoma City office
Education
LL.M., Columbia Law School
Juris Doctor, Vanderbilt Law School
Bachelor of Liberal Studies, University of Oklahoma
Honorary Consul for Uruguay. Served as an editor of the Columbia Law School Human Rights
Law Review. Former Chairman of Oklahoma Health Departments Ethical Practices
Committee (eliminated “ghost” employees). Admitted to practice in Oklahoma, Texas and before
the U. S. Supreme Court. Practices in the area of Employment-related Immigration Law,
including Employer Sanctions and Export Compliance ("Deemed Exports" under EAR & ITAR).
For over 40 years we have represented thousands of clients before U.S. related
immigration agencies (USCIS, ICE, CBP, DOS, DOL). Thus we have developed a high degree
of competency in the field. As a result our proprietary procedures and information
technology enables us to process our client’s immigration cases very efficiently. This
in turn allows us to charge relatively modest fees compared to many claiming to be
“immigration” lawyers. The quality of our representation is attested to by clients and
our ranking as one of the nation's top Immigration law firms by the US News and World
Reports and The Best Lawyers in America.
How we set a fee?
Rather than bill an hourly rate we almost always can a set a "flat fee" for our services
after evaluating an individual’s objective and circumstances. A flat fee allows the
client to know what the fee will be up front without having to worry that an initial
hourly estimate might eventually turn out to be much higher than estimated. Actual
costs, such as postage, copies, filing fees are billed separately as incurred.
Because such flat fees are customized for each client it is impossible for us to quote a
fee before evaluating each matter. We do not charge a fee for many initial client
consultations. You can be certain we will never do anything that will result in any
charge to you unless and until we quote a fee and you agree to it in advance.
In order to address most inquiries, a personal consultation will normally need to be
conducted. Should you wish to request an initial consultation, please complete our
initial consultation form which you can access
here.
After reviewing this information, should the matter qualify under our normal free 30
minute initial consultation policy, we will contact you to schedule a mutually
convenient time to conduct the consultation. Should it not qualify for a free
consultation because of its nature and/or complexity, we will inform you what fee we
would charge should you still desire an initial consultation.
Do I Need a Lawyer?
"A good immigration lawyer is worth his weight in gold." Director of the USCIS Western Service Center.
"Immigrants represented by lawyers in U.S. immigration courts were 17 times more likely to win their case." Los Angeles Times Survey.
"Immigration is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold."
USCIS spokeswoman Karen Kraushaar Washington Post.
The ideal time to seek legal assistance is before any documentation has been filed
with a government agency. When an immigration benefit has already been denied, it is
either difficult or sometimes impossible to obtain a favorable decision on appeal. A
competent immigration lawyer can analyze and advise you what your legal options are, the
consequences of exercising them and how to best proceed. By first obtaining competent
legal assistance, you should save time, money and frustration while insuring the best
possible outcome. It is our policy to conduct an initial consultation for each and every
potential client. You will be advised in advance of the cost, if any, for this initial
consultation. After evaluating your matter, we will discuss our fees should you be
interested in our representation.
The Best Lawyers in America is the premier worldwide reference publication for
ascertaining a U. S. lawyer's exceptional professional rating in specific areas of law.
Fewer than two percent (2%) of more than 14,000 Lawyers who claim to practice
“immigration” law in the U. S. are selected as the "best".
A "Best Lawyer" recommendation
is based on extensive surveying of the top attorneys in each relevant
field of law. Interviews begin with the following question: "If a family member or close
friend needed a lawyer and you couldn't take the case yourself -- for reasons of
conflict or in the interest of time -- to whom would you refer them?" So when the
publisher designates a lawyer as "the best," it isn't just their opinion. That
lawyer is the consensus choice of other top lawyers in the United States. Mr. Winningham
is currently designated as “best” immigration lawyer and have been for
many years. Our firm has likewise been designate as a top tier immigration law firm.
Some individuals may initially be content to obtain “cheap” legal representation,
but this often changes to anger and frustration when the result is a failure. The often
quoted truism, "you should only expect to get what you pay for" applies when
choosing a lawyer. However, one should expect the cost of quality legal representation to be
reasonable. Regardless, payment of a reasonable fee alone does not ensure you will
receive quality legal representation. You must first make an informed intelligent
choice among the many who claim to be either a good, superior, or even among the “best’
immigration lawyers. There is another saying worth recalling. “Some doctors mistakes
result in funerals, but an immigration lawyers are merely deported”.
Legal fees do not necessarily vary among lawyers depending upon their experience and
legal skills. We find our fees can often be substantially less than those charged by
lawyers with very minimal experience, resources and untrained support staff. It is
our policy to conduct an initial consultation for every potential client. You will
always be advised in advance of the cost, if any, for this initial consultation. After
evaluating your matter, we will discuss our fees should you be interested in our representation.
No one can guarantee the ultimate success of any immigration matter, and beware of
anyone who attempts to do so. U.S. Immigration law is one of the most complex areas
of American jurisprudence. The multitude of administrative regulations and federal
statutes which control U.S. immigration are not only complex and constantly being amended,
they are subject to changing interpretations of the U.S. Departments of Homeland Security,
Justice, Labor, and State, as well as many federal court decisions.
INTRODUCTION
Citizens, Nationals, and Aliens Defined
The following information is intended to provide a basic framework for complicated
U.S.
immigration laws and policies. This includes how foreign nationals might legally
visit,
study, work in, or immigrate to the United States. It is intended for those with
limited
prior exposure to this specialized area of law.
U.S. immigration laws and policies are often complex, illogical, and sometimes
contradictory.
Family reunification and business-employment enhancement are the basic
philosophical
foundations for the U.S. immigration quota system.
Immigrant visa quota chargebility is based upon the individual's country of
birth,
not upon the country of present citizenship.
There is usually no bias for or against persons from any particular country.
Backlogs in quotas for permanent resident status in some categories result
merely
from emigration demand, either worldwide or from specific countries.
Each individual's immigration case is usually unique and the availability of
benefits will depend upon each individual's particular circumstances,
objectives,
nationality, and qualifications.
CITIZENS, NATIONALS AND ALIENS
There are several distinctions one should be aware of initially. Persons physically
present in the United States are considered either citizens or nationals of the
U.S., or
they are aliens. There are two classes of legal aliens. Nonimmigrants, who are
admitted
to the U.S. temporarily, and immigrants who may reside in the U.S. permanently.
Immigrants are also referred to as permanent residents or "Green Card" holders. A
lawful
permanent resident may become eligible for naturalization as a U.S. citizen. This is
usually after maintaining lawful permanent resident status for five years (three
years
if married to a U.S. citizen), providing he or she meets all other statutory
requirements.
U.S. Asylum and Refugee Policy
The United States offers asylum and refugee protection to qualified applicants who
are
unable or unwilling to return to their country of nationality because of persecution
or
a well-founded fear of persecution. Claims of persecution must be based on at least
one
of five internationally recognized grounds: race, religion, nationality, membership
in a
particular social group, or political opinion. The Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 ("IIRIRA") also provided that some actions
taken
under coercive population control programs constitute persecution on account of
political opinion. A maximum of 1,000 aliens per fiscal year may be granted asylum
or
admitted as a refugee under this provision.
In addition to asylum and refugee protection, withholding of removal is available to
individuals in the United States who can show a likelihood their lives or freedom
would
be threatened if they were returned to the country in question. Withholding of
removal
is in some ways similar to asylum, but is governed by a higher standard, requiring
applicants to establish that it is more likely than not that they would be
persecuted.
Unlike asylum, however, once this standard is met, there is no discretion to deny
withholding and the applicant may not be returned to that country.
Asylum and refugee applicants are both adjudicated under the same legal standard,
but
differ in terms of where they are located. The potential asylee is in the United
States
or applying for admission at a port of entry, and the potential refugee is outside
the
United States. Aliens in the United States must file an asylum application within
one
year after the alien's arrival in the United States, unless there exist changed
circumstances affecting the applicant's eligibility for asylum, or extraordinary
circumstances which justify the delay in filing. People overseas who are eligible
for
consideration by the U.S. refugee program apply by filing a Registration for
Classification as a Refugee.
"Affirmative" Asylum Applications
An alien who is in the United States and who is not in immigration proceedings may
apply
to the U.S. Bureau of Citizenship and Immigration Services ("BCIS") for asylum.
Asylum
claims filed before an alien is in USCIS physical custody are "affirmative"
applications
filed voluntarily by the alien. If an asylum officer denies the asylum application
of an
alien in lawful status, the applicant can reapply for asylum before an immigration
judge
if he/she is later placed in removal proceedings. Affirmative asylum applicants are
not
placed in detention while their application is considered.
"Defensive" Asylum Applications
The Executive Office for Immigration Review ("Immigration Court" or "EOIR") has
exclusive jurisdiction over the cases of aliens who are placed in removal
(deportation)
proceedings and then seek asylum. Asylum claims filed before EOIR are "defensive"
applications raised in removal proceedings before immigration judges as a defense
against removal. Aliens who seek asylum as a defense against removal may be detained
for
being in the United States illegally until an immigration judge rules on their
asylum
claim.
Asylum Process for Certain Arriving Aliens
U.S. law mandates that aliens who arrive at a U.S. port of entry without travel
documents or who engage in fraud or material misrepresentation be detained and
placed in
expedited removal. Aliens who express or indicate a fear of persecution during the
expedited removal process receive a "credible fear" interview with an USCIS asylum
officer. Aliens found to have a credible fear are referred for ordinary removal
proceedings in which they may apply for asylum before an immigration judge. Aliens
determined to have a credible fear are detained because they remain in removal
proceedings until an immigration judge rules on their asylum claim.
Parole vs. Detention
USCIS district directors have discretionary authority to parole, or release, an
alien in
proceedings from detention. In determining whether release is appropriate on a
case-by-case basis, district directors must decide whether the alien's release would
serve an urgent humanitarian need or significant public benefit and whether the
alien
has established his/her identity, poses a threat to the community, demonstrates
family
ties in the community, presents evidence of a credible asylum claim, or poses a risk
of
flight. Different, more restrictive criteria govern the custody of certain criminal
aliens.
Temporary Protected Status
Please visit here for
details. (Courtesy of U.S. Citizenship and
Immigration Service)
Refugee Processing
Access to the U.S. refugee program is not open-ended. To file a Form I-590
application
as a refugee, a refugee applicant must first be found to be eligible for a refugee
interview. The question of whether applicants are eligible for a refugee interview
is
governed by their nationality and whether they come under one of the processing
priorities used to manage the U.S. refugee program. The designation of eligible
nationalities and processing priorities is decided annually.
Traditionally, refugee applicants are interviewed in third countries after having
fled
their country of persecution. Individuals who have fled their country and believe
themselves to be at risk if returned should contact the nearest office of the United
Nations High Commissioner for Refugees (UNHCR). That office will make a decision as
to
whether the individuals require protection and where that protection may be
provided.
The U.S. legal definition of refugee also allows for in-country refugee processing
in
countries so designated by the President.
BASIC NONIMMIGRANT VISAS
Issuance of a nonimmigrant visa by a U.S. Embassy or Consulate only permits an alien
to
travel to the United States. Upon arrival at a U.S. port of entry, a U.S.
Immigration
and Naturalization Service ("BCIS") official usually inspects and grants the alien
permission to enter and stay a certain period of time in the U.S. by endorsing a
card
called an arrival/departure record, or Form I-94. This USCIS authorized period of
stay
may exceed the validity date of the alien's visa. Nationals of some countries are
not
required to obtain tourist or business (B-1/B-2) visas to travel to the U.S. for
stays
of 90 days or less. Such individuals cannot extend their period of stay or change
their
status while still in the U.S.
NONIMMIGRANT VISA SYMBOLS
B-1 Temporary Visitor for Business - May be granted for up to 6
months with the possibility of an extension, for up to 6 months.
B-2 Temporary Visitor for Pleasure - Same restrictions apply as
for
B-1.
C-1 Alien in Transit - Aliens traveling to another country and
temporarily traveling through the United States.
D Crewmen - Permitted to stay 29 days; no extensions are
permitted.
E-1 Treaty Trader, spouse and children - Permits one to conduct
substantial trade between the U.S. and home country where one is a national or a
citizen. Trade includes services, technology, banking, insurance,
transportation,
communications, engineering, management consulting, etc. Valid for one year and
may
be extended. Not all countries have a treaty with the United States.
E-2 Treaty Investor, spouse and children - Permits investor
and/or
certain employees of a qualifying entity to direct and develop the operations of
an
enterprise where the investor or entity has invested a substantial amount of
capital. Such investment may not be made solely to earn a living. Usually valid
for
one year and may be extended.
E-3 Treaty Visa spouse and children - allows for the admission
of
nationals of the Commonwealth of Australia who are entering to perform services
in
"specialty occupations." Same definition as an H-1B "specialty occupation."
Limited
to 10,500 per fiscal year. Spouses and children will not count against the
10,500
cap. The time limits are the same as E-1 and E-2 visas in that they can be
renewed
indefinitely.
F-1 Student - Permits one to pursue a full course of study in
university, college, high school, academic institution or language program in
the
United States. Valid for duration of stay to complete studies, usually up to 8
years. Must initially have sufficient financial support to pay fees and stay
without
the necessity of working. Special rules permit work off campus under certain
circumstances. Spouse and children can apply for F-2 status. (Aliens should
usually
contact a Foreign Student Advisor at the subject institution for more detailed
information).
H-1B Specialty Occupation - Permits certain persons in
specialty
occupations to work when the person possesses the credentials necessary to enter
those specialty occupations.
H-2A Agricultural Worker - Permits temporary workers performing
agricultural labor or services of a temporary or seasonal nature to work.
Requires a
temporary labor certification (very complicated); may be granted for an initial
period of one year; extensions may be granted in increments of one year for a
maximum of 3 years.
H-2B Temporary Services of Labor - Permits temporary
non-agricultural workers performing other temporary services or labor to work in
the
United States. Same rules as H-2A. Limit 66,000 visas per year.
H-3 Trainee - Permits temporary workers invited to the United
States to receive training or instruction that is not designed primarily to
provide
productive employment. Training must not be available to alien at home,
incidental
employment necessary for training
J-1 Exchange Visitor - Permits admission of trainees, students,
scholars, professors and researchers who participate in a designated exchange
program. Usually permits one to complete degree plus 18 months for practical
training. May require 2 years foreign residency before alien can qualify for
permanent residence. Spouse and children qualify for J-2 status and are subject
to
any foreign residency requirements. A waiver of the foreign residency
requirement
may be available.
K-1 Fiancé(e) of United States Citizen - Permits admission to
one
coming to the United States to marry U.S. citizen who has met such person within
the
last 2 years. Must be married within 90 days after entry. Alien must adjust
status
in the United States, and is granted conditional status. Minor children can
obtain
K-2.
K-3/4 Immediate Family Member of U.S. Citizen
L-1 Intracompany Transferee - Permits international firms and
corporations with operations abroad to transfer employees of the same
organization
within the last 3 years to the United States as managers, executives or persons
with
specialized knowledge who continue to work in the same capacity. Usually
authorized
to stay 5 years if specialized knowledge, 7 years for managers and executives.
M-1 Nonacademic Student - Permits admission to vocational
students;
similar to F-1; cannot change educational objectives; cannot work. Admitted for
duration of stay to complete course + 30 days. Spouse and children can obtain
M-2.
O-1 Aliens of Extraordinary Ability in Arts, Sciences, Education,
Business
or Athletics - Alien should benefit the United States, and will be
authorized to stay to complete such service.
O-2 Permits admission to aliens who assist 0-1 - 0-3 is
available
to family members.
P-1 Performing Artists, Athletes, Famous Entertainment Groups and Teams
Internationally Known - Admitted for 5 years, and limited to
25,000
visas per year.
P-2 Reciprocal Exchange Visas.
P-3 Includes artists and entertainers who perform cultural
programs.
Q International Cultural Exchange Visitor.
R Temporary Religious Worker.
TN Treaty National (NAFTA).
V Certain Beneficiaries of LPR petitions pending 3 years or
more.
There is no such thing as a "work permit". Citizens, nationals and lawful permanent
residents are authorized to be employed in the United States. Certain non-immigrant
visa
categories include, as an incident of the visa, authorization to be employed in the
United States. The USCIS does issue certain non-immigrants "Employment
Authorization"
(EAD) cards.
IMMIGRANT VISAS GENERALLY
An immigrant visa is a visa which authorizes a person to immigrate to the United
States
during its four-month period of validity. As with non-immigrant visas, visa issuance
does not guarantee admission to the U.S. There are, however, certain waivers
available
to returning residents which are not available to other aliens seeking to enter the
United States.
Aliens in the United States or at a port of entry who are unable or unwilling to
return
to their home country because of a well-founded fear of persecution on the basis of
race, religion, nationality, political opinion, or membership in a particular social
group may be granted asylum. Such aliens are often referred to as "asylees".
THE FAMILY NUMERICAL LIMITATION SYSTEM
Within the numerical limitation system there are three separate limitations: (1)
There
is an absolute cap of 700,000 visas per year; (2) There is an annual cap of 25,650
visas
per year for each independent country and 7,320 visas per year for dependent
territories; and (3) There are percentage limitations within the system of
preference
categories.
Immediate Relatives are exempt from numerical limitations. Immediate relatives
include
the following three groups: Minor children of U.S. citizens; Parents of U.S.
citizens
who are at least 21 years of age and Spouses of U.S. citizens (Bona Fide
Marriage)
The immediate relative category is one of the most important immigrant visa groups
exempt from numerical limitations. Its obvious purpose is to promote the unity of
families of U.S. citizens. The present statute excludes from numerical restrictions
the
"immediate relatives" of U.S. citizens. However, while there is no limit to the
number
of visas issued to immediate relatives (currently about 250,000 annually), the
number of
visas issued to immediate relatives is counted as part of the 480,000 annual
allotment
for family-sponsored immigration. Increases in immediate relative visas will reduce
the
number of visas available for the numerically-limited family preference categories
until
those groups' share of the family-based immigrant visas falls to 226,000. When that
"floor" is reached, further reductions in the preference groups' share of the
family-based visas will end.
Other Family Sponsored Immigrants - A minimum of 226,000 family
sponsored visas will be allocated annually to the following Family Preference
System:
First Preference -(1) Unmarried sons and daughters of U.S.
citizens; 23,400 visas per year.
Second Preference - (2)(A) Spouses and minor children of
permanent
residents; 86,934 visas per year. (2)(B) Unmarried sons and daughters of
permanent residents; 27,266 visas per year. Total of 114,200 visas per year plus
any
unused visas above the 226,000 family preference minimum. 77% of all second
preference numbers are to be made available to spouses and minor children and
75% of
the numbers for spouses and minor children are to be made available without
regard
to the per-country ceiling.
Third Preference - (3) Married sons and daughters of U.S.
citizens;
23,400 visas per year plus any unused visas from the first two family preference
categories.
Fourth Preference- (4) Brothers and sisters of adult U.S.
citizens;
65,000 visas per year plus any unused visas from the first four preference
categories.
EMPLOYMENT BASED IMMIGRATION
140,000 visas are allocated annually according to an employment based preference
("EBP")
system. Such system was established in the belief that the U.S. economy would
benefit
from increased immigration of skilled workers. Not all of these employment based
visas
require labor certifications. The
five categories of employment based preference (EBP) visas are as follows:
I. EMPLOYMENT BASED PREFERENCE #1 PRIORITY WORKERS
A priority Worker Visa can be any one of 3 subgroups which provide 40,000 visas per
year
and where no labor certification is required. (A) Aliens with Extraordinary Ability in the Arts, Sciences, Education,
Business, or Athletics which has been demonstrated by national or
international recognition or extensive documentation. Such aliens can sponsor
themselves; they must come to the U.S. to work in such area; and their work in the
U.S.
must benefit the U.S.
(B) Outstanding Professors and Researchers. Such aliens must be
internationally recognized in a specific area, have at least 3 years' experience in
teaching or research, and be offered a permanent teaching or research position.
Researchers must work for an employer who employs at least 3 persons in
research.
(C) Multinational Executives and Managers. If an
alien
has
been employed by the same petitioning employer for at least one of the last 3 years
and
such alien will work in the U.S. in a managerial or executive position (which is a
definitive and complicated definition), in such circumstances the same petitioner
can
file on behalf of the alien. Presumably any alien on an L-1 visa who qualified for
the
L-1 based upon managerial or executive duties under the old Schedule A, Group IV
could
qualify.
II. EMPLOYMENT BASED PREFERENCE #2 PROFESSIONALS HOLDING ADVANCED DEGREES OR ALIENS
OF
EXCEPTIONAL ABILITY IN ARTS, SCIENCES OR BUSINESS
40,000 visas per year, plus any unused visas from EBP #1 above are
allocated for such
aliens. A professional with a bachelor's degree and 5 years experience would also
meet
the requirements of an advanced degree. A person of "exceptional ability" under
strict
standards defined by the USCIS can also qualify. Persons under either category
must
be
sponsored by an employer and must have an approved labor certification unless they
can
obtain a "National Interest Waiver" of the labor certification requirement. Persons
of
exceptional ability must illustrate they will benefit the economy, the cultural or
educational interests, or the welfare of the U.S.
III. EMPLOYMENT BASED PREFERENCE #3 BASIC PROFESSIONALS, SKILLED WORKERS, AND
UNSKILLED
WORKERS
40,000 visas plus any unused visas from EBP #1 and #2 above are allocated for: (I) Skilled workers in short supply with 2 years' training or
experience (ii) Professionals - members of the professions who hold bachelor's
degrees. Does not
permit experience to be used as equivalent of a bachelor's degree. (iii) Other workers including unskilled workers (No more than
10,000
visas per year can
be issued for unskilled workers.) Any qualifying alien must be coming to the U.S. to
perform unskilled labor for which qualified workers are not available.
IV. EMPLOYMENT BASED PREFERENCE #4 SPECIAL IMMIGRANTS
10,000 visas per year can be granted to:
a. Ministers of religion with 2 years' experience;
b. Religious workers who are not ministers;
c. Certain U.S. mission employees in Hong Kong;
d. Certain international organization aliens.
V. EMPLOYMENT BASED PREFERENCE #5 INVESTORS
10,000 immigrant visas per year can be given to any investor (and family) from any
country who:
a. Has engaged in or established new commercial enterprise after
November 29, 1990; and
b. Has invested or is in the process of investing $1 million in a
standard metropolitan
statistical area (SMSA) in excess of 20,000 inhabitants or $500,000. In a smaller
town
(or SMSA) or a targeted high unemployment area in an inner city or other area;
and
c. Creates at least 10 full time jobs not including the alien or
his
family members; and
d. Such commercial enterprise will benefit the U.S.
economy.
Such investor immigrant will be granted conditional permanent residence on behalf of
himself and his family which can be converted to permanent residence or "green card"
holder after 2 years when such investor files another petition with the USCIS
illustrating:
a. A commercial enterprise was established by the alien; and
b. The alien invested the requisite capital; and
c. 10 employees were hired, the investment was funded, and the business is
viable.
The regulations and their interpretations are varied; however, any good business
investment with the foregoing parameters could result in immigration benefits.
For most employers, sponsoring a foreign national employee for an employment-based green card requires filing a Program Electronic Review Management (PERM) labor certification with the U.S. Department of Labor (DOL).
A successful PERM labor certification indicates
(1) the employer intends to pay the appropriate prevailing wage for the position in the geographical area,
and (2) hiring a foreign national worker to fill the position will not adversely impact the U.S. labor market by displacing U.S. workers.
The DOL requires the employer pay the costs of the PERM process.
The DOL precludes employees from taking on any of the financial burden of a PERM application. The final steps thereafter (petition and application for “Green Card”) can be paid by either the beneficiary and/or the employer.
The following is a brief overview of the path to a “green card”.
Overview of the Labor Certification Process:
A labor certification is a determination by the U. S. Department of Labor (DOL) that no qualified U.S. workers are currently available,
qualified and willing to fill a position for which a labor certification has been requested.
Should the DOL grant the certification, it can be utilized by the alien beneficiary to seek lawful permanent residence status ("green card") in the U.S.
An employer is required to demonstrate such unavailability to the DOL by documenting its compliance with a very specific DOL prescribed multi-step recruitment process.
Our firm assists employers throughout this process.
Employers furnish us basic information to enable us to draft the requisite documentation (application, job description-duties, ads, notices, etc.).
The employer is expected to interview any applicants who might apply for the position.
A sponsoring employer incurs no obligation to hire any sponsored individual.
Nor is such an employer prohibited from terminating the individual at any time before (if currently an employee), during,
or after a Labor Certification application (or petition) is submitted, regardless of whether a certification is ultimately granted or denied by the DOL.
The employer is also under no obligation to hire any qualified U.S. worker who might apply for the position.
Also the employer is under no obligation to hire any qualified individual who might apply to the required test of the labor market pursuant to this mandated DOL multi-step recruitment process.
The DOL requires the position be advertised, etc. even though the alien may be occupying the position at the time and thus the employer has no actual position open.
The DOL's justification for allowing this is it is the only method by which the local labor market can be adequately tested to determine if any qualified US worker(s) are available for the position for which certification is sought.
When and if the Labor Certification is granted:
The employer must file a petition with the USCIS based on the DOL’s certification within 180 days of the certification to establish the petitioner is a qualified employer,
the alien is qualified for the position certified, and the position certified is properly classified in the preference category petitioned for.
Upon approval of the petition the alien is eligible to file an application for permanent resident status (“green card”) should there be a visa number immediately available.
We can initiate both of these latter procedures (petition and application for green card) simultaneously if there is a visa number immediately available to the alien based on his/her preference category and nationality at such time.
This is a simplified overview of these two areas which are highly regulated by both the DOL and USCIS.
The combined time required to complete these steps based on current normal processing times is estimated to be not less than 12 months,
depending on the nationality of the alien and the visa preference category involved..
ALIEN LABOR CERTIFICATION & NATIONAL INTEREST WAIVER
Most persons coming to the United States as Employment Based Preference ("EBP") #2
or #3
aliens must obtain an alien employment certification, more commonly known as a
"labor
certification". An exception for EBP#2's can be requested based upon a "National
Interest Waiver" The certification is from the Secretary of Labor to the Secretary
of
State and the Attorney General that (1) there are not sufficient United States
citizens
or lawful permanent resident workers able, willing, qualified, and available at the
time
of application for a visa and admission to the United States and at the place where
the
alien is to perform such skilled or unskilled labor, and (2) the employment of such
aliens will not adversely affect the wages and working conditions of workers in the
United States similarly employed. The labor certification process is complex,
time-consuming, and the results uncertain.
It should also be noted that individual labor certifications are generally not
available
to investors through business in which they have invested or own stock.
BARS TO ADMISSION AND EXPEDITED REMOVAL
In 1996 the 104th Congress passed the Illegal Immigration Reform and Immigrant
Responsibility Act ("IIRAIRA").
EXPEDITED REMOVAL: IIRAIRA created a new expedited removal process
in
effect at all U.S. ports of entry. Under this expedited process, persons attempting
to
enter the U.S. with fraudulent documents or no documents can be summarily removed
from
the U.S. by an Immigration and Naturalization Service (BCIS) inspector at the port
of
entry. Additionally, persons who attempt to enter by “mis-representation” also may
be
removed. The decision of the USCIS inspector is reviewed by his or her supervisor,
but
IIRAIRA explicitly limits judicial review of the BCIS’ decision to remove the
applicant.
In addition, a person subject to expedited removal can be barred by the USCIS
officer
from reentering the U.S. for a minimum for five years, and possibly permanently.
Certain
aliens who have committed an "aggravated felony" are also subject to removal in
expedited administrative proceedings.
BARS TO ADMISSIBILITY: IIRAIRA created new bars to admissibility to
the
U.S. for people
who have been unlawfully present in the U.S. for six months or longer. Under these
new
provisions, anyone who tries to enter the U.S. who has previously been in the
country
unlawfully for more than 180 days but less than one year, will be barred from
reentering
the U.S. for three years. Anyone who is in the U.S. unlawfully for one year or more
will
be barred from reentering for ten years. The period of unlawful presence in the U.S.
only starts to count on and after April 1, 1997, the date of enactment of IIRAIRA.
Only
very limited and narrow waivers and exceptions to these bars to admissibility exist.
AFFIDAVITS OF SUPPORT ON BEHALF OF IMMIGRANTS
The Immigration and Nationality Act now provides that an alien is inadmissible as an
alien likely to become a public charge if the alien is seeking an immigrant visa,
admission as an immigrant, or adjustment of status as: (a) An immediate relative,
(b) a
family based immigrant, or (c) an employment based immigrant, of a relative if the
alien
is the petitioning employer or owns a significant ownership interest in the entity
that
is the petitioning employer. To overcome this ground of inadmissibility, the alien
must
be the beneficiary of an affidavit of support filed under the new section 213A of
the
Act. Section 213A of the Act specifies the conditions that must be met in order for
an
affidavit of support to be sufficient to overcome the public charge inadmissibility
ground.
Form I-864, Affidavit of Support Under Section 213A of the Act, is a legally
enforceable
contract between the sponsor and the Federal Government, for the benefit of the
sponsored immigrant and of any Federal, State, or local government agency or private
entity that provides the sponsored immigrant with any means-tested public benefit.
The
sponsor must sign the Form I-864 before a notary public or a United States
Immigration
Officer or Consular Officer. By executing Form I-864, the sponsor agrees to provide
the
financial support necessary to maintain the sponsored immigrant at an income that is
at
least 125 percent of the Federal poverty line, unless the obligation has terminated.
The
sponsor also agrees to reimburse any agencies which provide means-tested public
benefits
to a sponsored immigrant. The sponsor must, under civil penalty, notify the Service
and
the State(s) in which the sponsored immigrant(s) reside of any change in the
sponsor’s
address.
Form I-864 must be executed on behalf of any accompanying or following to join
spouse or
child under section 203(d) of the Act, if they are filing application for immigrant
visas or adjustment of status after December 19, 1997 in a classification for which
an
affidavit of support is required.
Sponsorship Requirements
Section 213A(f)(1) of the Act sets forth the requirements to be a sponsor. The
individual executing the for I-864 must be a citizen or national of the United
States or
a lawful permanent resident of the United States, be at least 18 years of age, be
domiciled in the United States or any of its territories or possessions, and
demonstrate
the means to maintain an income of at least 125 percent of the Federal poverty
guideline
(100 percent of the poverty guideline for sponsors on active duty in the Armed
Forces of
the United States who are petitioning for their spouse or child).
Because the sponsor has an obligation to support the sponsored immigrant(s) at or
above
125 percent of the poverty line, for purposes of the Form I-864, the sponsor’s
household
size is increased by the number of immigrants sponsored in the affidavit of support.
This applies to all affidavits of support under section 213A of the Act, regardless
of
whether the sponsored immigrant(s) will be living in the same residence as the
sponsor.
In order to meet the income threshold, the sponsor may rely on his or her own
income,
the income of his or her spouse, and the income of any other individuals who are
related
to the sponsor by birth, marriage, or adoption and have been living in the sponsor’s
residence for the previous 6 months or who are listed as dependents on the sponsor’s
most recent income tax return. In order to rely on the income of these other
persons,
however, the sponsor must include with the affidavit of support a written contract o
Form I-864A, Contract Between Sponsor and Household Member, between the sponsor and
each
person whose income the sponsor will rely on to meet the income threshold. This
written
contract will provide that each person whose income the sponsor will rely on has
agreed,
in consideration of the sponsor’s signing of the Form I-864, to assist their sponsor
in
supporting the sponsored immigrant(s), to be held jointly and severally liable for
payment of any reimbursement obligation that the sponsor may incur, and to submit to
the
personal jurisdiction of any competent court.
Federal individual income tax returns for the 3 most recent tax years must be
attached
to the Form I-864 for each individual whose income is used to qualify. These
individuals
must certify on Form I-864A, under penalty of perjury, that any attached tax returns
are
true and correct copies of the returns as submitted to the IRS. If any of these
individuals has no legal obligation to file a Federal income tax return for any of
the 3
most recent tax years, he or she must explain his or her failure to file and provide
other evidence of annual income. The sponsor and any other individual whose income
is
used to qualify must also submit current evidence of employment of self-employment
(if
any).
After calculating household income, the sponsor must determine whether his or her
total
income level meets or exceeds the poverty guidelines, based on the applicable
household
size, including family members residing with the sponsor, dependents, and any
immigrants
sponsored in the Form I-864 being filed or in a previous Form I-864 where the
obligation
has not terminated. There may be instances in which an Immigration or Consular
Officer
may question the sponsor’s ability to maintain income based on the sponsor’s current
employment situation, on the Federal income tax returns for the 3 most recent tax
years,
or on receipt of welfare benefits.
If the petitioner is unable to demonstrate the means to maintain income equal to at
least 125 percent of the poverty line, the intending immigrant is inadmissible under
section 212(a)(4) of the act, unless the petitioner and/or the sponsored
immigrant(s)
demonstrate significant assets which are available for the support of the sponsored
immigrant(s) or a joint sponsor also executes a Form I-864. In order to be a joint
sponsor, the individual must execute a separate Form I-864 and must accept joint
legal
responsibility with the petitioning sponsor and have an income and/or assets, based
on
his or her household size, including dependents and the number of persons previously
and
currently sponsored on Form I-864, which meets or exceeds 125 percent of the Federal
poverty line.
Because section 213A(f)(6)(A)(ii) of the Act specifically permits the sponsor to
rely on
the assets of the immigrant sponsored in the affidavit of support being filed, the
sponsored immigrant is not required to sign for I-864A in order for the Consular
Officer
or Immigration Officer to consider the sponsored immigrant’s assets. To reiterate, a
sponsored immigrant who is a member of the sponsor’s household is required to sign a
for
I-864A only if the sponsor will rely on that sponsored immigrant’s income to show
the
sponsor’s ability to support a spouse or child immigrating with the sponsored
immigrant.
The Immigration Service has determined that assets must be sufficient to support the
intending immigrant(s) for at least 5 years, if necessary. Under section 403(a) of
the
Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law
104-194, any alien (with certain exceptions) who obtains lawful permanent resident
status after enactment is ineligible for any Federal means-tested public benefit for
a
period of 5 years. 5 years is also the general residency requirement to qualify most
immigrants for naturalization.
EMPLOYER SANCTIONS
The Immigration Reform and Control Act of 1986 provided for the imposition of:
Civil and Criminal penalties for hiring aliens not authorized to work by the BCIS.
The
following comments are directed primarily to the basic record keeping requirements
every
employer must meet for every employee hired since November 6, 1986. Overall, the new
law, Public Law 99-603 imposed civil and potential criminal penalties upon any
employer
who fails to verify the proper working status of any employee hired by requiring the
following:
Every employer and new employee must complete and sign Parts 1 and 2 of Form
I-9, called Employment Eligibility Verification.
Every employer must obtain from and verify the documents of the employee to
establish identity and employment eligibility from List A (one document is
sufficient), or alternatively, the employer must:
Obtain a document to establish identity from List B; plus,
Obtain a document to establish employment eligibility from List
(one document each from List B and C is sufficient).
Every employer must complete Part 2 of Form I-9 after being furnished a
document
from List A (only) or documents from List B and C. In addition, each
employer
must sign Part 2 under penalty of perjury verifying Form I-9.
Form I-9 must be kept by the employer for 3 years after the date of hiring
or
for one year after the employment is terminated, whichever is later.
Every employer must furnish Form I-9 for inspection to any USCIS or
Department
of Labor officer within 3 days after such a request is given to the
employer.
Employers normally become liable if:
They knowingly hire an unauthorized alien.
They hire anyone without verifying employment status, within the first 3
days of
employment.
After hiring anyone in accordance with the new law, they continue that
employment knowing one is or has become unauthorized to work.
They obtain the services of an alien by contract, subcontract, or exchange
knowing the alien is unauthorized to work.
DEADLINES AND PENALTIES
Form I-9 (or a copy thereof) must be completed within 3 business days for anyone
hired
after May 31, 1987. Form I-9 does not need to be completed for:
Any person hired before November 7, 1986, and penalties and requirements in the
law
do not apply to one hired before 11/07/86, or
Any person employed for domestic work in a private home on an intermittent or
sporadic basis, or
Any persons who provide labor to you who are employed by a contractor providing
contract services or persons who are truly independent contractors (a narrow
definition of "independent" is stringently applied).
Employers can comply with the verification requirements of Form I-9 if a document
"reasonably appears on its face to be genuine". Employers are authorized, but not
required, to make copies of documents examined.
EMPLOYER VIOLATION - Hiring or continuing to employ unauthorized
employees. 1st Violation - A fine of no less than $250 nor more than $2,000
for
each unauthorized employee. 2nd Violation - A fine of not less than $2,000 nor more than
$5,000
for each unauthorized employee.
EMPLOYER VIOLATION - Failure to complete, maintain or produce Form
I-9
when requested. 1st Violation - A fine of not less than $100 nor more than $1,000
for
each employee. In determining penalties, consideration will be given to the size of
the
business, good faith
efforts to comply, seriousness of the violation, and whether it involves
unauthorized
employees.
EMPLOYER VIOLATION - Employers who require the employee to
indemnify
the employer against liability may be fined $1,000 and ordered to make
restitution.
EMPLOYER VIOLATION - Engaging in a pattern or practice of violating
the
law - fine of $3,000 per employee and/or 6 months imprisonment.
EMPLOYER VIOLATION - Engaging in fraud, false statements or
misusing
visas, permits or identity documents - fines and imprisonment up to 2 years.
All employers should have procedures to insure proper completion, maintenance and
retrieval of Form I-9 for any employees hired since November 7, 1986.
USCIS officers have no right to enter an employer's private premises without a valid
arrest or search warrant issued by a federal judge or magistrate,
unless the employer
consents. An employer's normal duty to present I-9 forms after
three
days' advance
notice does not include other documents, such as payroll lists or tax records.
Neither
the employer or the employees are required to answer any USCIS officer's questions.
It
is a crime to lie to federal officers or to make false statements on I-9 forms.
DEPORTATION - REMOVAL RIGHTS AND REMEDIES
I. If you are questioned by agents of the U.S. Immigration and
Naturalization
Service ("BCIS"), you have these rights:
Right to know the reason for being questioned or detained;
Right to remain silent;
Right to an attorney at your own expense;
Right to refuse a search of your home unless the USCIS official has
a
search warrant; and
Right to request release from custody on bond or personal
recognizance.
Some exceptions are certain aggravated felons, individual deemed a
danger to the community, and/or flight risk.
If you are in the custody of the USCIS and your immigration status is
questioned, the USCIS may ask you to sign a voluntary departure statement
and
waive your right to a hearing. You may be eligible to request a
deportation-removal hearing before an Immigration Judge.
Administrative Voluntary Departure - is when you
agree
to leave the United States voluntarily without a hearing.
Deportation-Removal Proceedings - are hearings to
determine your right to be or remain in the United States. You may
wish
to request a hearing:
If you can adjust your status to a permanent resident;
If you are eligible for cancellation of removal proceedings;
If you have been denied but are eligible for voluntary
departure; or
If you want to request political asylum in the United
States.
Right to Attorney - You have the right to be
represented by an attorney
at your own expense at the deportation-removal hearing. If you
request a
hearing, you must await the date of the hearing while you remain in
the
custody of the USCIS unless you are released on personal
recognizance or
bond.
Right of Appeal - If an immigration judge orders
that
you be deported,
you have a right to appeal that decision to the Board of Immigration
Appeals (BIA) in Washington D.C., and thereafter to a federal court.
You
also have the right to remain in the United States while your appeal
is
pending.
SEVERAL FORMS OF RELIEF FROM DEPORTATION-REMOVAL ARE:
Adjustment of status to permanent resident - While
under an order of deportation-removal, a person who is eligible may
apply for this relief.
Cancellation of Removal (Suspension of
deportation), If
granted, this relief will waive the order of deportation. The
minimum
prerequisites for applying for suspension of deportation are:
Continuous residence in the United States for ten years.
Good moral character for seven years (or 10 years as above);
and
"Exceptional and extremely unusual hardship" to your U.S.
citizen or lawful permanent resident spouse, parent or
child.
Asylum - Must normally apply for during first year
after entry into the United States.
Voluntary Departure - Can be applied for before or
during the deportation hearing. The general prerequisites are:
Good moral character for at least five years prior to the
date
of application; and
The financial means to depart the United States.
If your voluntary departure request is granted, an immigration judge will allow you
a
certain period of time within which to depart from the United States. Failure to
leave
within the specified time automatically reinstates the order of deportation.
However, a
request for extension of the date of voluntary departure may be made to the USCIS
District Director.
NOTE: It is always better to avoid formal deportation-removal when
possible, because it
will bar your legal re-entry into the United States for up to five years or more,
unless
you are able to obtain prior special permission from the U.S. Attorney General. Such
illegal re-entry may subject you to a felony criminal prosecution.