The INS now requires that aliens follow Section 265 of the Immigration and Nationality Act, which mandates that all aliens in the United States must notify the INS of a change of address within ten days of moving. The way to notify the INS is using Form AR-11, which can be found in the Links section of this website. In addition to the instructions on the form, I suggest you also follow these instructions:
1. Fill out form – one copy per family member.
2. Mail to the address on the form using a method where you obtain proof of delivery.
3. Make and keep in a secure place a copy for yourself along with the proof of delivery.
4. If you lose your copy or proof of delivery, send a new form.
5. Fill out and send this form within ten days each time you move.
Termination of Proceedings
A non-citizen of the United States, including lawful permanent residents (green card holders), can be deported (under current law deportation is called “removal”) for violating the terms of his visa, for committing certain crimes, or for certain types of conduct contrary to the immigration laws, like alien smuggling or using false documents. A person trying to enter the United States can be arrested, denied admission and excluded from the United States as well. However, just because the government claims that a foreigner is excludable or deportable does not mean that he or she is. The foreigner can fight his case in Immigration Court and it can sometimes be terminated because the government’s claim of deportability or excludablity cannot be proved. Being a citizen protects
a person from being deported or excluded. Sometimes a person is a citizen without being aware of it. If an Immigration Judge is presented evidence that shows that the person is a citizen, removal proceedings will be terminated.
Suppression of Evidence
In presenting its case to deport someone, the government often has a burden of producing evidence of deportability. If the evidence the government submits to prove its case is illegally obtained and the illegality amounts to an egregious constitutional violation or, in the case of testimony, is untrue, evidence may be suppressed. If a foreigner arrested by the Bureau of Immigration and Customs Enforcement (BICE) or the Directorate of
Border and Transportation Security (BTS) makes statements as a result of coercion through the use of or threats of use of force, prolonged detention, inducements to lie, threats of prolonged detention, or deprivation of food, sleep, or medical care, that put in serious doubt the truthfulness of the statements, the statements may be suppressed as well. If the government’s case relies on the suppressed evidence, suppression could lead to termination.
Cancellation of Removal for Certain Permanent Residents
Certain foreigners in removal proceedings may be eligible for a pardon that will prevent removal. One such form of relief is Cancellation of Removal for Certain Permanent Residents. This relief is for lawful permanent residents (Green Card Holders) who have had their permanent residence for five years and have acquired seven years of residence in the United States after being admitted in any status. The seven years of residence sometimes stops accruing when a removable offense is committed and always stops when a charging document from the government charging the alien with removability is given to the alien. An Immigration Judge’s decision to grant a pardon is made
based on a weighing the positive and negative equities in a case.
Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents
In the case of foreigners who have been in the United States for more than ten years and have committed no crimes (with some exceptions), relief from removal may be available if the foreigner can show exceptional and extremely unusual hardship to his spouse, parent, or child who is a citizen of the United States or a lawful permanent resident.
Adjustment of Status
In certain situations, a foreigner who has been placed in removal proceedings can receive a visa and permission to reside in the United States from an Immigration Judge. This option is sometimes available to foreigners who have committed some specific types of crimes in the United States. Sometimes a criminal ground that would bar a foreigner from obtaining permanent resident status in the United States can be waived based on the existence of hardship to the foreigner’s spouse, parents, son, or daughter who are permanent residents or citizens.
Certain acts of fraud that make a foreigner ineligible for a visa can also be waived if denying the foreigner the ability to stay in the United States would be a hardship to the foreigner’s spouse or parent.
In the case of a foreigner who must leave the United States, it is sometimes possible to receive a grant of voluntary departure rather than a removal order. Voluntary departure allows for an alien to obtain a visa outside the United States to return to the United States without any of the penalties attached to having been removed, which range from a five year bar to a permanent bar to ever returning to the United States depending on the basis for and circumstances of the removal.
For many foreigners there is no defense to being deported under the current interpretations of the law. This does not mean that nothing can be done. There are many challenges to the current harsh removal laws. Some persons in removal proceedings have opted to challenge the legitimacy of the statutes and interpretations of the statutes that threaten them with removal from the United States. Those that stand and fight can have a positive impact on the law and may be able to preserve issues in their own cases so that they will ultimately be victorious and defeat the government’s attempt to remove them. Some of the harshest provisions of changes in the law in 1996 have been overturned because some people fought rather than simply left.
Many foreigners who have committed crimes are taken into custody. In recent years the laws have been toughened regarding detention and the courts have also hardened in their views regarding the legitimacy of detaining foreigners who have completed their criminal sentences and paid their debts to society. Also, aliens who arrive in the United States without what the government considers proper documentation are taken into detention while the government decides whether to return them, allows them into the United States for later examination, or decides whether they have credible fears of returning to their homelands. Those whom the government believes have credible fears are often detained while the government determines if they are eligible and deserving of protections under the asylum/human rights provisions of the law through asylum, withholding of removal, or protection under the Convention Against Torture.
Release is often possible for detained foreigners. Those who have been released from criminal custody for many crimes after October 8, 1998, the government insists are subject to mandatory custody. The courts have decided that mandatory detention does not apply to permanent residents. The government may detain others based on a discretionary determination that they do not merit release because they are dangers to the community or flight risks. Aliens not caught at the border can ask for a bond hearing before an immigration judge to request bond or to have an excessively high bond lowered. The government can sometimes be persuaded to lower the amount of a bond it sets when evidence is brought to its attention.
International Law and United States immigration law provides for the protection of foreigners who fear returning to their homelands. There are several categories of protections that can be applied to different situations.
One avenue for being permitted to stay is by applying for asylum, which allows a foreigner to stay in the United States because of a well-founded fear of persecution in their homeland. Persecution must be based on a well-founded fear of persecution on account of the following five bases:
4. Membership in a particular social group
5. Political opinion.
Withholding of Removal
Foreigners in the United States may be able to apply for withholding of removal if it is “more likely than not” that they will be persecuted on account one or more of the five bases listed above. This form of protection may be available in circumstances when asylum may be unavailable, such as if the foreigner had convictions for serious crimes or if the foreigner has been in the United States for more than a year and has not applied for asylum without an extraordinary circumstance explaining the failure to file or when there was no changed circumstances that explain late filing.
Convention Against Torture (CAT)
Foreigners may be eligible for protection in the United States under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, CAT. The foreigner must establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal. The government must be the source of the torture. his type of relief is available to foreign nationals who face the likelihood of torture for whom asylum and withholding of removal are unavailable. This would be in the case of persons who face the likelihood of torture for reasons other than on account of one of the five factors. Also this would be the case for foreigners who failed to file asylum applications within one yer of admission or have committed serious crimes that render them ineligible for asylum or withholding of removal.
A foreigner who has had permanent residence for five years is often eligible to apply for naturalization and thus become a United States citizen. However, not all permanent residents are eligible to naturalize. Care must be taken to insure that there are no criminal problems, conduct problems, or issues regarding absences that will lead a person to be denied naturalization or worse, to be placed in removal proceedings because of absences, criminal activity, or improper conduct. In such cases, a person would be better off not applying to naturalize. If a permanent resident is married to a United States citizen, the wait from the time of becoming a permanent resident to applying to naturalize may be less than five years, and as little as three years if the permanent resident is married to a United States citizen and was married to the United States citizen when he became a permanent resident. Special procedures exist for naturalizing the children of United States citizens.
A person born in the United States is a citizen from birth. In addition, however, citizenship can be conferred at birth through parentage. If a foreign born person’s parent or parents are citizens, it is possible that the person is a citizen from birth. Much depends on the residence of the parents before the birth of the child, whether it is the mother or father or both who are citizens when the child is born, what year the child was born, whether the parents were married when the child was born, and other factors as well. If a person is born of a citizen parent, it is worthwhile to analyze the relationships to determine whether the person may be a United States citizen. Further, contrary to popular conception, marrying a United States citizen does not confer citizenship, nor does being adopted by a United States citizen confer citizenship. Adoptees and their adoptive parents need to be careful to analyze the immigration status of their adopted children and to take steps to insure that the children are present in the United States in lawful status and become citizens, if that is the parents’ goal. Insuring that your adopted child is a United States citizen is very important because of the harsh consequences to non-citizens of illegal conduct that can lead to being placed in removal proceedings. Children who celebrated or will celebrate their 18th birthdays before February 27, 2001, who are lawful permanent residents, and who have a parent with whom they have lived who is a United States citizen, are automatically United States citizens. Proof of citizenship can be obtained form the INS or by obtaining a passport.
A foreign national who has served in the United States military during a period of military hostilities on active duty and was discharged under honorable conditions is often eligible to naturalize. Vietnam War and Gulf War service are considered wartime service. So is service in the war on terrorism. The foreigner need not have served where the war was being fought to qualify. Certain crimes may bar a service member from applying for naturalization if they were committed after November 29, 1990. Further, the applicant for naturalization must demonstrate good moral character for the year period before making application. In addition, the foreigner must have enlisted or reenlisted in the United States or a U.S. territory or ship or have become a lawful permanent resident. Being in removal proceedings does not preclude seeking naturalization under these provisions for soldiers who served in the United States military during a period of military hostilities. The relevant dates are:
1. World War I (specifically, between April 6, 1917, and November 11, 1918).
2. World War II (specifically, between September 1, 1939, and December 31, 1946).
3. the Korean hostilities (specifically, between June 25, 1950, and July 1, 1955).
4. the Vietnam hostilities (specifically, between February 28, 1961, and October 15, 1978).
5. Persian Gulf Conflict (specifically between August 2, 1990, and April 11, 1991).
6. September 11, 2001 to the present (Pursuant to Executive Order 13269 of July 3, 2002).
Foreigners with relatives in the United States may be able to acquire permanent residence through these relationships. The relationships that can lead to permanent residence can be divided into two categories: immediate relative and preference categories.
The immediate relative category refers to the spouse, parents, and children of United States citizens. A child is defined as a person under age 21 who is unmarried and is a natural child or adopted child as long as the adoption took place before the child turned 16. Stepchildren, children of a spouse, are also immediate relatives if the marriage of their parent and stepparent took place before they reached age 18. Visas are immediately available for those in these relationships and as a result application for permanent residence can be made without any waiting. Upon filing the alien can receive employment authorization – a work permit. There is still an additional wait until an interview and the actual granting of a permanent resident visa.
In addition to immediate relatives, there are four preference categories. They are:
1st Preference: Unmarried sons and daughters of citizens. A son or daughter is distinguishable from a child as a child is less than 21 years old and a son or daughter is 21 years old or older.
2A: Spouses and children of permanent residents
2B: Unmarried sons and daughters of permanent residents
3rd Preference: Married sons and daughters of citizens
4th Preference: Brothers and sisters of adult citizens. An adult citizen is one who is at least 21 years of age.
The preference categories are subject to limitations on the number who can immigrate each year. This results in wait lists that vary from between two and twenty-one years depending on the preference category and the country from which the family comes. The wait lists are much longer in some categories for Mexicans and Filipinos than for persons from the rest of the world. In the Links section, a link to the Visa Bulletin, provided by the Department of State, is provided which shows the dates being processed in the various preference categories.
A curious wrinkle in the law is that a person immigrating or adjusting status in a preference category can bring his spouse and children with him at the time of immigrating or they can adjust status with him, procedures referred to as “accompanying” or “following to join” the principal immigrant alien, while an immediate relative cannot. Thus, should a United States citizen petition to immigrate his father (an immediate relative) and stepmother (who married the father after the child turned 18) and children of the father, to the United States, the father can immigrate without any wait (other than processing times) but the stepmother and the children will then have to be petitioned for by the father once he immigrates. In contrast, if a United States citizen petitions for his brother, a preference category, once the brother’s visa is current, the brother can immigrate accompanied by his wife and children.
A study of the preference categories leads to certain realizations. A permanent resident cannot bring his or her parents to the United States as a permanent residents. A permanent resident cannot bring his or her married children to the United States. Finally, while a permanent resident can bring his or her spouse and children to the United States, there will be a wait of at least five years to do so.
Before any relative can immigrate to the United States, the relative is screened to insure that he or she is admissible. Having committed certain crimes, drug arrests or use, and certain conduct contrary to the immigration laws render a person ineligible to obtain permanent residence. A careful review of a person’s life, immigration history, and criminal history is necessary before deciding to obtain permanent residence for the relative. In addition, the petitioner, the citizen or permanent resident requesting that the foreign relative be permitted to obtain permanent residence must demonstrate the ability to support the foreign relative. The Bureau of Citizenship and Immigration Services and Department of State require that particular forms, affidavits of support, be filed and documents provided to prove financial ability to support a relative. The petitioner must also show that he or she will reside in the United States at the time the relative is being granted the permanent residence visa.
Attaining permanent residence can be done two ways, either in the United States if the relative is in the United States through a process called adjustment of status or through a United States Consulate abroad, in a process referred to as immigrating. There are many questions that need to be examined before determining which option is available, including whether the foreign relative is in the United States or abroad, whether the relative is lawfully in the United States, whether the relative entered the United States lawfully, and whether the relative has ever left the United States. Because of a series of strict rules that came into effect on April 1, 1997, if a person has been in the United States and accrues unlawful presence (another technical term) of more than 180 days and departs the United States, he or she may be barred from coming back for a substantial period. Further, if a person entered the United States without inspection and no one ever petitioned for him in the apast, the past date varying as Congress moves it up from time to time, he or she will be barred from adjusting status in the United States. Thus, there are situations where a foreign relative is both unable to adjust status in the United States and unable to immigrate through a United States Consulate. A careful analysis should be made before making any decisions about whether to choose immigration or adjustment of status and deciding whether or not to come to the United States or to depart the United States to obtain a visa abroad. A link provides additional information regarding labor certifications courtesy of the U.S. Department of Labor.
Employment Based Visas
In addition to obtaining permanent residence through relatives, it may be possible to obtain permanent residence through employment or special abilities and skills. Most persons who obtain a green card through employment must first complete the labor certification process. The Immigration and Nationality Act also provides other avenues for obtaining a green card which do not require the completion of the labor certification process. These exceptions include the following categories: aliens of extraordinary ability, outstanding professors and researchers, national interest waivers and certain multinational executives and managers.
Labor certification is a process where a foreigner can seek permanent residence through an offer of employment. The process requires proof that the employer has not found a U.S. worker who is able, available, willing and qualified to take the job offered to the foreign worker. The employer must advertise for the job and give a detailed report of the results of the recruitment effort.
Outstanding professors and researchers is a category for foreigners recognized internationally as outstanding with three years of research experience. Experience obtained while pursuing an advanced degree will only be acceptable if it has been recognized within the academic field as outstanding. This category requires an employment offer from a university or institution of higher learning on a tenure track, a research position at a university or institution of higher learning, or a private employer with a research department that employs at least three persons full time to conduct research and has achieved documented accomplishments in an academic field.
Multinational managers and executives who have worked as a manager for at least one year for a related company abroad may be able to use this category. The employer abroad and the sponsoring company in the U.S. must have at least 50% common ownership. This category also allows for the immigration of “function managers,” which are managers who do not manage any personnel but who work at a senior level and control an essential function for the company.
National Interest Waiver
This process may be available if an alien can demonstrate that his presence is in the national interest, the employment requirement can be waived. While in the past this type of visa was granted quite often, changes in the policy of the CIS has made it more difficult to receive this type of visa. To successfully obtain a green card through this process, the foreign worker must be seeking employment in an area of substantial intrinsic merit, the work must provide a benefit that is national in scope to the U.S. and it must be demonstrated that the national interest would be adversely affected if the person were required to complete the labor certification process discussed above. Of the various employment based categories, the national interest waiver is one of the most difficult for foreign workers to complete successfully.
Aliens of Extraordinary Ability
Aliens of extraordinary ability is a category for foreigners who have extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. A person of extraordinary caliber eligible for this type of visa is not required to have an employer to sponsor him, but must demonstrate that he intends to continue the work in which he or she is extraordinary in the United States and that the person’s presence in the United States will be of future benefit to the United States.
Foreign investors who invest $1 million dollars in the United States in a new commercial enterprise or a troubled business and will create full-time employment for ten U.S. workers may be able to obtain an immigrant visa under this category. The permanent resident visa under this category is issued conditionally. After two years, upon showing that the investment was established and in continuous operation during the applicable period, the condition may be removed. The $1 million amount is not fixed. The CIS has the discretion to lower the amount to $500,000 for “targeted employment areas” (rural and high unemployment areas). Because of the inflexibility in this type of visa, the lengthy processing times, strict requirements regarding putting the money at risk, and hard-to-prove requirements regarding proving the source of funds, very few are approved each year and it is not a recommended first-choice for an avenue to seek to immigrate to the United States.
Not all foreign workers are interested in permanent residence in the United States. Several types of temporary (nonimmigrant) visas are available as well. Temporary visas usually have a much shorter processing time and are often sought by foreign workers before a decision to become a permanent resident is reached.
One difficulty in obtaining visas is that it can take the INS a long time to process a visa application. The INS has a process called premium processing wherein processing will be completed in 15 days if an additional $1,000 fee is paid. While the premium processing program is quite often a luxury for those with extra money to spend, sometimes expedited processing is urgent to allow a person to work rather than be idle while waiting for visa approval. Premium processing is available for the following visas (discussed below): E, H, L, O, P, Q, R, and TN.
Visa Waiver Program
Citizens of Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan and the United Kingdom are able to enter the United States for up to ninety days under the Visa Waiver Pilot Program, which allows them to enter without a visa at all! The drawback is that there are no extensions or changes of status allowed after coming to the United States under this program (except for adjustment of status as a spouse, parent, or child of a United States citizen, though this requires careful consideration as recent court decisions make this ability extremely doubtful). One entering through the VWPP must have a round trip ticket and waives all right to contest removal from the United States. Travelers from these countries must enter themselves in the Electronic System for Travel Authorization (ESTA) website before they travel.
B-1 Business Visitor Visas
B-1 Business Visitor Visas permit business visitors to enter the United States to engage in business activities such as attending conventions, conferences, consultations, signing contracts, doing research for future investments, and the like. B-1 visitors are not permitted to receive income in the United States from United States employers. There are other special purposes for B-1 issuance, such as to accommodate a United States citizen’s or certain non-immigrant worker’s domestic servants when in the United States, certain employees of foreign companies coming to the United States to install or service equipment or train U.S. workers to use and maintain the equipment, supervisors or trainers of building or construction workers, and employees coming to the United States to plan, construct, dismantle, maintain, or to be employed in connection with exhibits at international fairs or expositions of foreign exhibitors at international expositions.
E-1 and E-2 Treaty Visas
E-1 Treaty Trader Visas and E-2 Treaty Investor Visas allow a foreigner, his or her spouse, and children to enter the United States to carry on substantial trade between the United States and the state in which the foreigner is a national (E-1) or to develop and direct an enterprise in which the foreigner has invested or is investing a “substantial amount of capital” (E-2). The term “substantial trade” for the E-1 visa is measured by the INS’s weighing the volume of trade, the number of transactions, and the continued course of trade including demonstrating commitments for future trade. Regarding the E-2 visa, the term “substantial amount of capital,” referred to as a “substantial investment,” is not defined. The amount can vary from enterprise to enterprise and consulate to consulate. The greater the total size of the enterprise, the greater the investment must be. Some examples of active investments that can qualify the issuance of an E-2 visa include a retail store, a restaurnt, an import/export company, and a real estate development company. An E visa can be renewed in five year increments virtually forever, as long as the trade or enterprise is still continuing. As the terms “treaty trader” and “treaty investor” suggest, only nationals of countries which have signed treaties of commerce and navigation with the United States are eligible for these types of visas. The following is the list of the countries citizens of which are eligible for E-1 and E-2 visas. Be advised that for some countries, certain regions or territories may not be covered by the treaties. Spouses of E visa holders are permitted to obtain employment authorization documents.
The E-1 Treaty Trader Visa countries are:
Argentina Australia Austria Belgium Bolivia Brunei Canada China (Taiwan) Colombia Costa Rica Denmark Estonia Ethiopia Finland France Germany Greece Honduras Iran* Ireland Israel Italy Japan Korea Latvia Liberia Luxembourg Mexico Netherlands Norway Oman Pakistan Paraguay Philippines Spain Suriname Sweden Switzerland Thailand Togo Turkey United Kingdom Yugoslavia
The E-2 Treaty Investor Visa countries are:
Argentina Armenia Australia Austria Bangladesh Belgium Bulgaria Camaroon Canada China (Taiwan) Colombia Congo (Brazzaville) Democratic Republic of the Congo (Kinshasa) Costa Rica Czech Republic Ecuador Egypt Estonia Ethiopia Finland France Germany Grenada Honduras Iran Ireland Italy Jamaica Kazakhstan Japan Korea Kyrgyzstan Latvia Liberia Luxembourg Mexico Moldova Mongolia Morocco Netherlands Norway Oman Pakistan Panama Paraguay Philippines Poland Romania Senegal Slovak Rep. Spain Sri Lanka Suriname Sweden Switzerland Thailand Togo Trinidad and Tobago Tunisia Turkey Ukraine United Kingdom Yugoslavia
*Because of trade sanctions, Iranians are effectively only eligible for E-2 visas.
** The successor republics to Yugoslavia for which E-1 and E-2 visas are available are Bosnia, Croatia, Macedonia, and Slovenia. Because of trade sanctions, E-1 and E-2visas are unavailable for Serbia and Montenegro.
H-1B visas permit foreigners to work in the United States in specialty occupations, which generally means as professionals. A specialty occupation is defined as a position where possessing a bachelors or higher degree or its equivalent is normally the minimum requirement for entry into the particular position, the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree, the employer normally requires a degree or its equivalent for the position; or, the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelors or higher degree. The visa is issued for three years with six years as the total amount of time in the visa permitted.
L-1 visas permit foreign managers and executives or those with specialized knowledge to transfer from a foreign organization to work for an organization owned by the same people in the United States as a manager or executive. The foreign worker must have worked for one year of the last three years before applying for the visa for the foreign organization. The visa is issued initially usually for one to three years and can be extended for up to six years for specialized knowledge employees and seven years for managers and executives. The foreign and United States businesses can, but are not required to, involve the same business activity. For example, if the ownership requirements are met, the foreign company can be involved in food processing and the United States company involved in real estate development. Further, the foreign worker can be, but does not have to be, a shareholder or owner of the businesses. Additionally, there is nothing preventing the foreign worker from being the principal or sole owner of both the foreign and United States entities. A foreigner who is a manager or excecutive holding this visa is eligible to change to lawful permanent residence through the multinational executives and managers visa category discussed in the Employment Based Immigration category, as discussed in the Employment Based and Investor Immigration section. Spouses of L visa holders are permitted to obtain employment authorization documents.
O-1 visas are designed for foreigners who are persons of extraordinary ability in the sciences, business, athletics, and education. The category is also available for aliens of extraordinary ability in the arts. There is no limitation on the period of stay of O visa holders. However, admission is approved for the time necessary to complete the event or activity or events or activities for which the visa was approved, for up to three years. Extensions are available to complete the events or activities. Taking on new events or activities will require a new visa except that entertainers and artists can receive extensions for additional performances or engagements. An advisory opinion is required vouching for the alien’s qualifications and the nature of the work to be done. O visas are sometimes useful for extraordinary ability foreigners to put off (but not eliminate) the two-year return to their home country under the J visa program and for aliens who have exhausted the time limits on their H-1B visas.
P visas are used by performers and athletes to come to the United States temporarily for purposes of performing. P-1 visas are reserved for prominent athletes and entertainers to entertain or complete, P-2 visas are for foreigners involved in artistic or entertainment exchange programs, and P-3 visas are for artists, entertainers, or groups who enter the United States to develop, interpret, represent, coach, or teach, a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or representation. Like with the O visa, advisory letters are needed.
TN NAFTA Visas
The North American Free Trade Agreement provides for the admission of Canadians and Mexicans to perform professional work indicated in an annex to the NAFTA treaty. Most, but not all, of the occupations require a bachelors degree. The visa is issued for one year, and is extendable for one-year increments. To obtain a TN visa, the visa holder must demonstrate that he or she has no intention of settling in the United States, i.e., that he or she have a nonimmigrant intent. The procedures are relatively streamlined for Canadians and admission can be accomplished with an adjudication at a border or at certain airports! The procedures are more complicated for Mexicans requiring the filing of a visa petition and a Labor Condition Application (LCA) and obtaining a visa at a United States Consulate, procedures quite similar to those for obtaining an H-1B.
In addition to entering the United States through relatives, through Employment Based and Investor Immigration, and by seeking the protection of the United States through asylum/human rights provisions of the law, foreigners can enter and remain in the United States as non-immigrants by enrolling in school and obtaining student visas.
F-1 Academic Student Visas
An alien who has a residence in a foreign country, which residence the alien has no intention of abandoning, may seek to come to the United States to temporarily pursue a full course of study at a college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program at a school approved by the Attorney General, may qualify for, and obtain, an F-1 student visa. One must first be accepted to the school and receive a Form I-20. Application for the visa is usually made at a United States Consulate abroad.
M-1 Vocational Student Visas
An alien having a residence abroad, which the alien has no intention of abandoning, who wishes to enter the United States solely for the purpose of pursuing a full course of study at an established vocational or other recognized non-academic institution may qualify for, and obtain, an M-1 student visa.
Students are permitted to stay in the United States for the duration of their status, i.e., while they are enrolled in and are pursuing the program for which they were admitted. Students must be enrolled in full-time programs and demonstrate that they have sufficient means of support while in the United States. Student visas permit limited opportunities to work based on a scholarship or fellowship, work study, as part of practical training programs, and for F-1 students, when facing an unexpected financial emergency. The rules vary for F-1’s and M-1’s with the opportunities for M-1’s substantially fewer than for F-1’s. Academic students cannot receive employment authorization based on financial emergency until they have completed on year of academic study. Consular officers expect that prospective students will be supported from abroad when they come to the United States. Inquiries of consular official by prospective students about employment opportunities in the United States could raise suspicions that the foreign student does not have the financial means to study in the United States.
For the most part, schools that enroll foreign students, handle most of the paperwork through the school’s foreign student adviser, who is delegated authority from the INS to issue paperwork for the INS the schools. Schools earn considerable income from foreign student tuition payments and consequently have a strong financial incentive to provide these services. Thus, most often students do not require the assistance of immigration attorneys in obtaining visas. However, in cases where difficulties arise, an immigration attorney may be necessary.
Another visa often relating to education and academic life is the “exchange visitor” J-1 visa. This visa is used by foreign students (usually at the graduate school level), scholars, experts, medical interns, residents, “international visitors,” and industrial and business trainees to enter the United States. Foreigners obtain J visas through working with organizations that have been approved to run programs which can bring J visa holders to the United States. A program that would like to involve exchange visitors can apply for designation so it can bring J visa holders to the United States.
Some J visa holders are subject to a two-year foreign residence requirement, mandating that before a foreigner who is in the United States with a J visa can become a permanentresident through family based immigration, Employment Based and Investor Immigration, or hold a H, including a H-1B, or L-1 visa, the foreigner must return to and reside in his home country or home of last residence for two years. It is possible to waive this requirement but the criteria foe doing this are very difficult to satisfy. Most J visa programs are administered by the program sponsor who deals with most issues, though in complex cases it can be necessary to seek an immigration attorney’s assistance.
The R visa is a religious worker visa.This is an alien coming to the U.S. temporarily to work as a minister of religion, s a professional in a religious vocation or occupation, or for a bona fide nonprofit religious organization at the request of the organization, in a religious occupation which relates to a traditional religious function. The religious worker must have been a member of a religious denomination having a nonprofit religious organization in the United States for at least the two years immediately prior to the application date. To be eligible, the U.S. petitioning organization must be a nonprofit religious organization granted (or eligible for) tax exempt status, and must demonstrate that it can and will provide for all of the R-1 beneficiarys financial and physical needs.
The Immigration and Naturalization Service and the Customs Service are authorized to seize vehicles at the Ports of Entry as well as inside the United States based on probable cause that the vehicle is being used for illegal purposes. Often a vehicle is seized when contraband is found in the vehicle or foreigners without proper papers to enter or be in the United States are found in the vehicle. The owner of the vehicle can seek to have his vehicle returned. By filing petitions for remission or mitigation owners of vehicles may be able to have their automobiles returned to them. When an owner of a vehicle can show that he or she was unaware that his or her vehicle was being used for illegal activity, it is possible to have the vehicle returned without paying penalties. When the owner is partially or totally responsible for the illegal activity he or she may still be able to recover the vehicle after paying a fine, based on mitigating circumstances. The assessment of a fine is not automatic and may be avoided if there is a properly prepared petition for mitigation.The process of seeking the return of a vehicle is lengthy and can become quite complex. The best results are obtained by vehicle owners who preserve the right to prove their cases in the federal court system by paying a bond at the initial stages of the procedure rather than relying solely on the favorable discretion of the INS and Customs officers who decide the cases. Observation of strict deadlines is crucial.
Many decisions of the BCIS, BICE and the Immigration Courts are appealable. Appeals of many adverse decisions of the BCIS are available with the INS’s Administrative Appeals Unit or the Board of Immigration Appeals. Appeals of Immigration Court decisions are often available at the Board of Immigration Appeals. Beyond these administrative appeals, appeals are often available in the federal court system. This is especially true when a petition or other form of immigration benefit is denied by the INS or Immigration Court in an arbitrary manner. Complaints for writs of mandamus, complaints seeking declaratory relief, and petitions for writs of habeas corpus challenging illegal detention and wrongful deportation are available in the district court. Petitions for review of some decisions of the Board of Immigration Appeals in some types of cases and appeals of adverse decisions of the district courts are available at the United States Courts of Appeals. Choosing the proper forum to appeal a decision is complicated and has become more and more complex after changes in the law in 1996 and 1997 have attempted to strip courts of their authority to review some decisions. Further, some appeals are controlled by strict time limits requiring that the appeal be filed within a certain period of time or the right to appeal is lost.
Another area for venturing into the District Court is to challenge the INS when there are excessive delays in adjudicating applications and petitions.