Category: Immigration Law

For those seeking temporary admission to the United States, there are a variety of visas available. However, each visa has its own unique qualification system, duration and potential pathway to permanent admission. Generally, there are six types of non-immigrant visas: (1) tourism; (2) educational; (3) special or family-related; (4) work or business; (5) governmental or quasi-governmental; and (6) miscellaneous. These visas are outlined below.

Tourism

B-2-A tourist visa. Note that residents of some countries may enter the United States for tourist purposes under the Visa Waiver Program. Residents of countries that are not governed by the Visa Waiver Program must apply for B-2 visa if they wish to visit for tourism purposes. When evaluating whether to grant a B-2 visa, consular officials must be convinced that the person coming to the United States will not engage in work; is coming for a short period of time with a clear purpose; and unmistakably will depart at the end of the visit.

Educational

F-1-The most common of the education study visas, designated for persons coming to engage in academic study in a full-time program at an approved institution. The F-1 visa statute prohibits persons seeking a student visa from studying at a public institution unless she will attend the school for less than 12 months and shows that she has paid the school the full unsubsidized per capita cost of the education. An applicant will have to show that she has sufficient funds to pay for the education without having to work, and that he or she has sufficient preparation to complete the course of study.

J-1-These visas are for persons coming to the United States as students, researchers, professors, nonacademic specialists, physicians, international visitors, camp counselors, au pairs, or summer students in travel/work programs. Persons on a J-1 visa may be subject to a two-year foreign-residency requirements before changing visa status or obtaining permanent residency. This requirements if triggered if (1) the person’s program was financed in whole or in part by the US government, or by the government of the person’s nationality or country of last residence; (2) if the person was engaged in a field that was designated at the time of their entry as in short supply or needed in the person’s home country; 0r (3) if the person obtained medical training after January 10, 1977.

M-1-This is a visa program for vocational students engaged in a full-time program at a recognized nonacademic institution.

Special and Family-Related Visas

K Visas-K-1 visas are for fiancé(e)s of U.S. citizens for the purpose of getting married within 90 days of admission. K-2 visas are for minor children of K-1 visa holders. K-3 and K-4 visas are issued to spouses of U.S. citizens and their minor children for a two-year period while the pending immigration petition is processed.

V Visas-These visas are for those married to a permanent residents, or the children of permanent residents, for whom a petition was filed on their behalf prior to December 21, 2000.

Work or Business

B-1-The B-1 Visa is for those traveling to the United States for business other than “work.” The individual must not intend to abandon their foreign residence. Examples of reasons for a B-1 visa would be to negotiate a business deal or attend a conference.

E visas-These visas are for treaty traders and treaty investors. They allow persons to stay indefinitely in the United States under a treaty of commerce between the United States and their home country. Treaty investors are persons developing an enterprise in which they have invested a substantial amount of capital.

H-1B-This visa allows persons engaged in “specialty occupations” to come to the United States to work. A “specialty occupation” is defined as a job that requires “the theoretical and practical application of a body of highly specialized knowledge” and a bachelor’s degree or higher. There is an annual quota on H1-B visas. The employer, in order to sponsor H1-B visas, must obtain a certification of a labor condition application from the Department of Labor.

H1-C-This visa is for professional nurses working in health care professional shortage areas.

H2-A-This visa is temporary or seasonal agricultural workers. Non-agricultural workers are admitted under the H-2B visa. H-2B visas are subject to quotas and require Department of Labor approval.

H-3-This visa is for persons who are receiving instruction or training in any field, as well as training in a purely industrial establishment, with the exception of graduate medical training or education. The H-3 visa is only available if the equivalent training is not available in the home country, the foreign national will not be placed in a position where U.S. workers are regularly employed, and the training will help the foreign national pursue a career outside of the United States.

I visas-These visas are for representatives of foreign media.

L visas-These visas are designed for intracompany transfers of persons who serve a company in a managerial or executive capacity, or who possess specialized knowledge. L-2 visas permit the admission of spouses and children of L-1 visa holders.

O visas-These are for individuals who have demonstrated extraordinary abilities in the sciences, arts, education, business, or athletics. The O1-AB visas are for those in motion picture or TV production.

P visas-These visas for athletes and entertainers, particularly those that perform as part of a group.

Q visas-Q visas are for persons participating in an international cultural exchange program approved for the purpose of providing employment, practical training, and the sharing of history, culture and traditions of the person’s country of nationality.

R visas-These visas are for ministers and persons working in a professional capacity for a religious organization.

TN visas-TN visas are for Canadian and Mexican nationals who seek “temporary entry as a business person to engage in business activities at a professional level.”

Law Enforcement-Related Visas

S visas-S visas are for individuals who have important and reliable information concerning a criminal organization or enterprise.

T visas-These visas cover those that have been subjects of severe human trafficking.

U visas-These visas are for individual who have been victims of serious violent crimes and have been helpful, currently are helpful, or likely to be helpful to a federal, state, or local law enforcement official.

Governmental or Quasi-Governmental

A visas-These are for individuals with diplomatic immunity.

G visas-These are for officials, employees, and dependents of international organizations that are quasi-governmental, like the UN or World Bank.

This guide was only meant as an introduction to the types of non-immigrant visas. If you have further questions, feel free to contact us for a free consultation with a U.S. immigration attorney.

The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.

There has been much talk in the news recently regarding refugee and asylum procedures. United States law provides for the protection of people overseas from persecution. The refugee and asylum systems are complicated. This post attempts to shed some light on the processes.

Refugee Status

Those seeking refugee status are persons outside the United States who seek entry to the United States because they are “unable or unwilling to return to, and [are] unable or unwilling to avail [themselves] of the protection of [their country of origin] because of persecution or well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

What qualifies as persecution? Courts have defined persecution as the infliction of suffering or harm in a way regarded as offensive. This can include both physical harm and substantial economic deprivation. The harm can be harm that as inflicted in the past or is feared in the future. The harm need not be inflicted by the foreign government but can also be inflicted by persons the foreign government is unable, or unwilling, to control. The fear must be “well-founded” such that a reasonable person would possess this fear.

The persecution must also be “on account of race, religion, nationality, membership in a particular social group, or political opinion.” There is a great deal of case law on the meaning of the terms race, nationality and membership in a particular social group, but courts tend to take an expansive view of these terms (or at least have done so historically). Recent cases have held that gender can count as membership in a particular social group, almost always in the context of gender-based violence towards women. This includes case law that treats domestic violence in certain counties as persecution based on membership in a particular social group. There has also been recent success for those seeking refugee status to flee gang violence in certain countries, particularly by informants, former gang members and family members of those targeted by criminal gangs. There are also protections for those fleeing coercive population control, such as forcible abortion or sterilization.

Discretionary denial of refugee status is permitted in cases in situations involving past persecution where a change of circumstances within the country of origin have eliminated any well-founded fear of persecution, or the applicant could relocate within the country of origin to avoid persecution. It is mandatory that refugee status be denied where: (1) the applicant ordered, incited, assisted, or participated in the persecution of others; (20 the applicant has been of a particularly serious crime (including any aggravated felony) in the United States and constitutes a danger to the community; (3) there are serious reasons to believe that the applicant has committed a serious, non-political crime outside the United States; (4) there are reasons to believe that the applicant constitutes a danger to the national security of the United States or is a suspected terrorist; (5) the applicant has been firmly resettled in a third country; (6) the applicant has previously applied for and been denied asylum in the United States or failed to file for asylum within one year after arriving in the United States; or (7) the person may be removed under a bilateral or multilateral agreement to a safe third country where the person’s life or freedom would not be threatened and where he or she would have access to a full and fair procedure for determining the asylum claim.

Ultimately the granting of refugee status and asylum is discretionary. The United States government caps the number of refugees permitted in a given year. Once a refugee is given a travel document that person has four months to come to the United States and seek admission and one year to apply for lawful permanent resident status.

Asylum

Asylum procedures, which govern persons already inside the United States, differ slightly from overseas refugee procedures. Those who apply for asylum at a point-of-entry will be screened in an expedited removal process. This process will determine whether there is a “credible fear” of persecution, and if one exist, a hearing before an immigration judge will be set. The applicant may also request review of the credible fear determination by an IJ.

Persons already in the United States may submit a claim to an asylum officer. If the asylum officer denies the claim, removal proceedings will commence. Applicants may also make defensive claims of asylum when removal proceeding s have already commenced.

Other Refugee Procedures

There are other methods for gaining entry to the United States to avoid persecution. These include withholding of removal, where an applicant makes a showing of “clear probability” of a “threat to life or freedom.” If this more demanding standard is set, entry must be permitted. Under the Convention Against Torture a person may not be removed to a country where there are substantial grounds for believing that the individual would be in danger of torture or subject to inhumane or degrading treatment. The burden is on the person seeking admission to prove this, but if proved, it is an absolute bar to removal. Finally, temporary protected status permits the U.S. government identify nationals of a particular country experiencing a national emergency who may stay in the United States during the period of the emergency, such as a civil war or natural disaster. The person must be in the United States at the time of TPS designation to qualify.

As one can see, there are many issues raised when considering a request for asylum or refugee status. If you have further questions, feel free to contact us for a free consultation with a U.S. immigration attorney.

The above is general information only and not to be relied upon as legal advice. It does not create an attorney-client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.

There are several reasons that a person seeking admission to the United States may be denied entry or a person present within the United States may find themselves facing removal (deportation). Understanding these grounds for removability is necessary to determine what options you may have for gaining entry to, or remaining in, the United States.

Denied Entry to the U.S. on Health-Related Grounds

Persons who have a communicable disease of public health significance, who have not been immunized from certain diseases, or who have psychological problems that might render them dangerous to others or to themselves may not be admitted to the United States. A determination of inadmissibility for these reasons may be reviewed by a panel of physicians and the individual denied entry may bring his or her own medical expert to dispute the determination. Drug abusers, defined as those who engage in nonmedical use of a substance listed in § 202 of the Controlled Substances Act, are also inadmissible on health-related grounds.

Individuals already within the United States are not subject to removal for health-related grounds.

Denied Entry or Deportation on Criminal Grounds

Persons who have committed or admit to the commission of acts that constitute the essential elements of a crime of moral turpitude (including attempts or conspiracy) or a violation of state, federal, or foreign laws relating to a controlled substance are inadmissible to the United States. There are exemptions for “petty offenses” where the person committed only one crime of moral turpitude and either the person was under 18 when the crime was committed (and was released from any confinement more than 5 years prior to the date of application for admission) or the maximum penalty for the crime did not exceed one year in prison and the person was not sentenced to a term of imprisonment of more than six months.

In addition to crimes of moral turpitude (committed within five years of the latest entry) and controlled substance violations, crimes of domestic violence, firearms convictions, and aggravated felonies can all lead to deportation. Aggravated felonies include crimes involving rape, sexual abuse, illicit trafficking in a controlled substance, money laundering, firearm offenses, crimes of violence, theft offenses for which the term of imprisonment imposed is at least one year, and fraud or deceit crimes in which the loss to the victim exceeds $10,000. For a person to be deported on criminal grounds the person must be convicted of the offense at issue.

Denied Entry or Deportation on Security and Foreign-Policy Grounds

There are a variety of security and foreign-policy grounds for denying a person admission to the United States, including espionage, sabotage, illegal export of sensitive information, goods and technology, terrorism, Communist membership, and membership in a totalitarian political party. Other unique foreign-policy grounds for denying admission exist as well.

Persons may be deported on foreign-policy grounds for similar reasons, including the violation of laws relating to the export of goods, technology, or sensitive information, criminal activity that endangers the public safety and national security, or activity that has as its purpose the overthrow of the U.S. government by force, violence, or other unlawful means.

Denied Entry or Deportation on Economic Grounds

Admission may be denied to those “likely to become a public charge.” Generally, this concern arises in the context of family-based immigration and is overcome by the submission of an affidavit of support by the sponsor. The sponsor must show an income of 125% of the poverty line. This test may also be satisfied through a showing of assets.

Those who become a public charge within five years of admission, due to circumstances that did not arise after admission, are subject to deportation. Note that presently the person must have received what amounts to a cash payment from a government entity. However, this is a potentially changing area of the law, and it is unclear what changes may be made to the public charge definition. For deportation to occur, the entity that conferred the benefits must make a demand for repayment that was refused.

Denied Entry or Deportation for Immigration Law Violations

Persons may be inadmissible who:

1. were not admitted or paroled;
2. failed to attend their removal hearing without reasonable cause;
3. committed fraud and misrepresentation;
4. are stowaways;
5. knowingly encouraged, induced, assisted, or aided another to enter the United States in violation of the law;
6. have been fined for making false documents or using someone else’s lawfully issued documents; or
7. entered the United States to study at a private institution and improperly switched to a public institution in violation of 8 U.S.C. § 212(a)(6)(G).

Notably, a person who willfully misrepresents a material fact in obtaining or seeking to obtain a visa, documentation, or admission to the United States may be forever inadmissible. However, there are a variety of penalties that may attach to different violations of the immigration laws and it is best to consult with an attorney when facing potential removal for immigration law violations.

Additionally, failure to maintain status and failure to notify change of address may result in removal.

Denied Entry on Quasi-Criminal and Moral Grounds

There are other grounds for denial of admission that are not necessarily criminal, such prohibitions on the admission of persons coming to practice polygamy, as well as those who engaged in, or seek to engage in, prostitution, or who have sought to procure a prostitute within the last 10 years. Whether these activities were legal in the country in which they took place is of no consequence.

As one can see, there are many grounds for removal, and any interaction with the United States immigration authorities should be taken seriously. If you have further questions, feel free to contact us for a free consultation with a U.S. immigration attorney.

The above is general information only and is not to be relied upon as legal advice. It does not create an attorney-client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.

As you interact with the United States immigration system you will encounter several acronyms and abbreviations. This is a helpful guide to the basics of this alphabet soup of U.S. immigration agencies, courts and departments you may be dealing with:

DHS — Department of Homeland Security

This is the Cabinet department that oversees U.S. Customs and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE), all of which are described below.

USCIS — U.S. Citizenship and Immigration Services

This is the agency responsible for adjudicating immigration benefits, such as change and extension of visas; granting green cards; naturalization; and asylee and refugee matters.

CBP — U.S. Customs and Border Protection

This agency is responsible for all matters relating to the inspection of persons and goods arriving at the border.

ICE — U.S. Immigration and Customs Enforcement

This agency is responsible for investigating violations of the immigration laws and enforcing the departure of non-American citizens who are not authorized to be in the United States.

AAO — Administrative Appeals Office

This is the appellate body within the USCIS that reviews USCIS decisions.

DOS — Department of State

This Cabinet department is still the primary decision-making authority over the issuance of visas. When a person applies for a visa, he or she does so overseas before an American consul, who is under the authority of the Secretary of State. Although the consular officer has the authority to issue the visa, the rules governing the requirements for the visa are promulgated and interpreted by the Department of Homeland Security. The Department of Homeland Security assumes control over the entry of the visa-holder once they arrive at the border.

EOIR — Executive Office for Immigration Review

These are the immigration courts that decide issues of removal.

DOJ — Department of Justice

This Cabinet department oversees the Executive Office for Immigration Review.

INS — Immigration and Naturalization Service

The INS no longer exists, but for decades was the agency responsible for administering immigration policy.

IJ — Immigration Judge

This is the individual who will hear matters regarding detention and removal.

BIA — Bureau of Immigration Appeals

This agency hears appeals of decisions by immigration judges.

OSC — Office of Special Counsel

This Department of Justice agency is responsible for immigration-related employment discrimination.

OCAHO — Office of the Chief Administrative Hearing Officer

This DOJ office hears antidiscrimination claims and cases involving sanctions imposed on employers who illegally hire foreign workers.

DOL — Department of Labor

This Cabinet department makes decisions involving the U.S. labor market and workforce issues.

BALCA — Board of Alien Labor Certification Appeals

This agency within the Department of Labor reviews the Department of Labor decisions.

HHS — U.S. Department of Health and Human Services

HHS retains jurisdiction for some decisions made regarding unaccompanied minors in removal proceedings through the Office of Refugee Resettlement.

While there are additional agencies that may be involved in an immigration matter, these agencies are the primary agencies you will encounter when dealing with the United States immigration system. If you have a question about an immigration matter, please contact The Law Offices of Andrew Dressel LLC for a free consultation with an immigration attorney to further discuss your immigration needs.