Most persons wishing to enter the United States permanently in order to work will have to qualify for labor certification. In order to qualify for labor certification, the alien needs a US employer who is willing to file an application on his or her behalf. The application is filed with the Labor Department in the area where the alien will be employed. The Labor Department regulations are quite lengthy and burdensome. They require advertising the job and going through a recruitment process to ascertain whether there are any US workers willing, able, and qualified for the position, and that the prevailing wage will be paid.
Please read the instructions, attached to the application, carefully to make sure that all of the requirements are followed. Also review the Labor Department regulations for additional guidance and assistance.
After the labor certification is approved, the petitioner will file the I-140 petition with the immigration service center that has jurisdiction over the area where the alien will be employed. Attached to the petition should be the original approved labor certification, evidence of the alien’s experience or education, which was required in the labor certification application, and evidence that the petitioning company has sufficient funds in order to pay the proposed salary stated in the application. Also attach the correct filing fee.
If the beneficiary is in the United States and eligible to file for adjustment of status, he or she should also complete form I-485, together with the G-325A biographic information form, photographs, and a medical exam, and attach the applicable filing fee. Again, please read the instructions attached to the application to determine what other documents may be needed, and what the filing fees are. Please note: If you are subject to Section 245 (i) of the Immigration Act, you may also have to pay an additional penalty fee of $1000.00.
Note: Whenever you mail any forms or documents to the immigration service, you should always do so by certified mail, return receipt requested, or by some form of express mail for which you can obtain proof of receipt. This is very important in the event that immigration loses your application. In that event you can submit your proof of receipt, with evidence of payment, and you keep your priority date as well as not having to pay the fee again.
Labor certification is only filed on behalf of the principal alien (the person to be employed by the business in the United States). When labor certification is approved, the spouse and minor unmarried children of the principal beneficiary (known as the accompanying aliens) can be included in the I-140 petition. The principal applicant and each accompanying family member must file a separate application for adjustment of status to permanent residence in the United States. Please note: Each application must have attached to it all of the documents listed above, except that the accompanying aliens do not need to attach a copy of the I-140 documents to their applications.
Once the application(s) for adjustment of status is properly filed with the service center, the Immigration Service will issue work authorizations to each person who applied, usually within 90 days. Thereafter, the aliens will be scheduled to have their fingerprints taken at an immigration support center. Employment based applications are usually approved by mail without the need of a personal interview. (In the event that an interview is requested, it will be scheduled at the local immigration office nearest the place where the principal beneficiary lives.)
The approval notice will be mailed to the beneficiary notifying him or her (together with the spouse and children, if applicable), to appear at the local immigration office nearest where the beneficiary lives to have a temporary permanent resident stamp placed in the passport. This stamp will constitute evidence of permanent residence status and work authorization, until the alien card(s) arrives in the mail. It usually takes 3-6 months to receive the alien card(s), but during this period the person is entitled to all the rights of a permanent resident including the right to work, travel, attend school, petition for qualifying family members, etc.
Thursday, October 22, 2009
How to Become a US Citizen
In the majority of these cases, the alien wants to stay with their spouse in the US and not have to return to their home country in order to obtain an immigrant visa. Let us discuss some of the scenarios, and the possible ramifications of each, as well as discussing briefly the procedures that will have to be followed in order to file for permanent residence (green card).
1. Entering the US with the specific intention of marrying and then filing for adjustment of status. This is probably the most common situation and can often lead to the greatest problems. It must be remembered that a person entering the US on a visitor visa, or visa waiver, is coming for the purpose of a brief visit, and they intend to return to their country prior to the expiration of their authorized stay in the US. Therefore, if they are really coming to marry a US citizen and then file for adjustment of status, they are not bona fide visitors for pleasure. As such, they are impliedly, if not specifically, misrepresenting their true intentions when they apply for entry to the United States.
If the US Immigration officer at the port of entry knows that they are not really coming to visit, but rather intend to stay permanently in the US, they very likely could be denied entry and required to return to their home country, where they will have to apply for their immigrant visa. There is also the possibility that the immigration officer could actually place the individual in removal proceedings, which could require them to obtain a waiver if they later wish to return to the US.
Even if the individual enters the US without any difficulty, a problem could still arise at the time that the individual appears for their adjustment of status interview. Again, if the immigration officer learns that the alien misrepresented their true intention at the time of entry, the officer could require the alien to file for a waiver of inadmissibility, which could be denied in the exercise of discretion.
There is case law that states “in the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intention to remain.” This is particularly true “where substantial equities are present in the case.” However, the Board of Immigration Appeals has also held that “entry into the United States as a nonimmigrant with a preconceived intention to remain is a serious adverse factor.”
Based on the foregoing, it should be clearly understood that there is always a risk involved when entering the United States for the purpose of marriage to a US citizen and then filing for adjustment of status, although in the majority of cases, the application will nonetheless be approved, especially where there are substantial equities and no other adverse factors.
2. Entering the US to visit and then deciding to marry and file for adjustment of status. In this scenario, the non-resident alien is coming to the US to visit a friend and, after they have been here for a while, the couple decides to get married and the alien files for adjustment of status. In this situation, the alien is less likely to encounter the problem of the person who entered the US for the specific purpose of marrying and filing for residence. However, in this situation, the alien should be prepared to show that he or she entered as a bona fide non-immigrant, either with a visa or on a visa waiver, and only decided to marry and file for adjustment after entry to the US. Naturally, the more time that passes between the entry and the marriage, the easier it will be to prove non-immigrant intent at the time of entry.
3. Entering the US to marry a US citizen, and then returning to your country to consular process. This situation is perfectly legitimate, but can often cause serious problems to the alien. The most obvious problem is that the INS officer at the port of entry may not believe that the alien will in fact return to his or her country after marrying the US citizen. Therefore, what often happens is that the alien is denied entry and must go back to their country and have a fiancé(e) visa petition processed on their behalf.
4. Entering the US, getting engaged, and then processing a fiancé(e) visa through the consulate. This is a common situation, and is perfectly legitimate. The alien enters the US to visit his or her friend, and then they decide to marry. For various reasons, the alien does not wish to marry at this time, and wants to return to his or her country.
In this situation, the US citizen would file a fiancé(e) petition (Form I-129F) with the Immigration Service. Once the petition is approved, it is forwarded to the US consulate where the alien resides, and he or she will apply for a K-1 visa. Once the alien enters the US, he or she MUST marry the petitioner within 90 days and then file for adjustment of status with the INS office that has jurisdiction over the couple’s place of residence in the US.
5. US citizen travels abroad to marry alien, who will apply for an immigrant visa or a K-3 visa at the consulate. In this situation, the US citizen will travel abroad and marry the alien in his or her country. Following the marriage, there are several options available. The best and fastest is for the US citizen spouse to file an I-130 petition directly with the US consulate. The problem is that some consulates do not want to be burdened with these petitions and, consequently, refuse to accept jurisdiction. Therefore, it is important before making any definite plans, to speak with a consular officer to see whether they would be willing to entertain the I-130 petition. If they do, then a consular officer will interview the couple and, if satisfied with the bona fides of the marriage, the petition will be approved. At that point, the alien can begin processing the application for an immigrant visa to the United States.
If the consul does not wish to accept jurisdiction of the case, the US citizen petitioner would have to file the I-130 petition with the Immigration Service Center that has jurisdiction over the place of petitioner’s residence in the US. If the parties are not in a hurry for the alien to come to the US, they can wait for the Service Center to approve the I-130 petition and then forward it to the National Visa Center, and then the US consulate for processing of an immigrant visa.
However, if the alien wishes to come to the US more quickly, the US citizen spouse should also file immigration form I-129F, after filing the I-130 petition. When this petition is approved, it will be forwarded to the consulate where the alien can apply for a K-3 visa. Once the visa is issued, the alien will be permitted to enter the US. After entry, the alien can immediately file for adjustment of status to permanent residence.
1. Entering the US with the specific intention of marrying and then filing for adjustment of status. This is probably the most common situation and can often lead to the greatest problems. It must be remembered that a person entering the US on a visitor visa, or visa waiver, is coming for the purpose of a brief visit, and they intend to return to their country prior to the expiration of their authorized stay in the US. Therefore, if they are really coming to marry a US citizen and then file for adjustment of status, they are not bona fide visitors for pleasure. As such, they are impliedly, if not specifically, misrepresenting their true intentions when they apply for entry to the United States.
If the US Immigration officer at the port of entry knows that they are not really coming to visit, but rather intend to stay permanently in the US, they very likely could be denied entry and required to return to their home country, where they will have to apply for their immigrant visa. There is also the possibility that the immigration officer could actually place the individual in removal proceedings, which could require them to obtain a waiver if they later wish to return to the US.
Even if the individual enters the US without any difficulty, a problem could still arise at the time that the individual appears for their adjustment of status interview. Again, if the immigration officer learns that the alien misrepresented their true intention at the time of entry, the officer could require the alien to file for a waiver of inadmissibility, which could be denied in the exercise of discretion.
There is case law that states “in the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intention to remain.” This is particularly true “where substantial equities are present in the case.” However, the Board of Immigration Appeals has also held that “entry into the United States as a nonimmigrant with a preconceived intention to remain is a serious adverse factor.”
Based on the foregoing, it should be clearly understood that there is always a risk involved when entering the United States for the purpose of marriage to a US citizen and then filing for adjustment of status, although in the majority of cases, the application will nonetheless be approved, especially where there are substantial equities and no other adverse factors.
2. Entering the US to visit and then deciding to marry and file for adjustment of status. In this scenario, the non-resident alien is coming to the US to visit a friend and, after they have been here for a while, the couple decides to get married and the alien files for adjustment of status. In this situation, the alien is less likely to encounter the problem of the person who entered the US for the specific purpose of marrying and filing for residence. However, in this situation, the alien should be prepared to show that he or she entered as a bona fide non-immigrant, either with a visa or on a visa waiver, and only decided to marry and file for adjustment after entry to the US. Naturally, the more time that passes between the entry and the marriage, the easier it will be to prove non-immigrant intent at the time of entry.
3. Entering the US to marry a US citizen, and then returning to your country to consular process. This situation is perfectly legitimate, but can often cause serious problems to the alien. The most obvious problem is that the INS officer at the port of entry may not believe that the alien will in fact return to his or her country after marrying the US citizen. Therefore, what often happens is that the alien is denied entry and must go back to their country and have a fiancé(e) visa petition processed on their behalf.
4. Entering the US, getting engaged, and then processing a fiancé(e) visa through the consulate. This is a common situation, and is perfectly legitimate. The alien enters the US to visit his or her friend, and then they decide to marry. For various reasons, the alien does not wish to marry at this time, and wants to return to his or her country.
In this situation, the US citizen would file a fiancé(e) petition (Form I-129F) with the Immigration Service. Once the petition is approved, it is forwarded to the US consulate where the alien resides, and he or she will apply for a K-1 visa. Once the alien enters the US, he or she MUST marry the petitioner within 90 days and then file for adjustment of status with the INS office that has jurisdiction over the couple’s place of residence in the US.
5. US citizen travels abroad to marry alien, who will apply for an immigrant visa or a K-3 visa at the consulate. In this situation, the US citizen will travel abroad and marry the alien in his or her country. Following the marriage, there are several options available. The best and fastest is for the US citizen spouse to file an I-130 petition directly with the US consulate. The problem is that some consulates do not want to be burdened with these petitions and, consequently, refuse to accept jurisdiction. Therefore, it is important before making any definite plans, to speak with a consular officer to see whether they would be willing to entertain the I-130 petition. If they do, then a consular officer will interview the couple and, if satisfied with the bona fides of the marriage, the petition will be approved. At that point, the alien can begin processing the application for an immigrant visa to the United States.
If the consul does not wish to accept jurisdiction of the case, the US citizen petitioner would have to file the I-130 petition with the Immigration Service Center that has jurisdiction over the place of petitioner’s residence in the US. If the parties are not in a hurry for the alien to come to the US, they can wait for the Service Center to approve the I-130 petition and then forward it to the National Visa Center, and then the US consulate for processing of an immigrant visa.
However, if the alien wishes to come to the US more quickly, the US citizen spouse should also file immigration form I-129F, after filing the I-130 petition. When this petition is approved, it will be forwarded to the consulate where the alien can apply for a K-3 visa. Once the visa is issued, the alien will be permitted to enter the US. After entry, the alien can immediately file for adjustment of status to permanent residence.
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