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Immigration Law
The Benefit of Using the Right Immigration Lawyer
Immigrating to the United States is a serious decision that should be accompanied by careful planning. One of the most important components is the selection of the " right immigration lawyer" to assist with visa acquisition and satisfaction of all legal requirements. The "right immigration lawyer" should be able to give you an honest and thorough assessment of your case and develop a strategy that makes the law work for you. The right lawyer should place you on the most efficient path to your goal, prepare the petition smartly by avoiding traps, and monitor the processing of the case to a successful conclusion.
Be cautious not to utilize immigration consultants or "notarios", most of whom are violating the law by practicing law without a license. Because these individuals are operating illegally, the Immigration Service does not recognize them and will not allow them to intervene on your behalf should a problem arise in your case. The mischief that they cause to trusting consumers is legend. Their work is not regulated and you do not have the same recourse available to go after them as you do should your attorney act dishonestly or incompetently.
Select an immigration lawyer based on referral. Absent that, the " right immigration lawyer" should have many years experience, have a record of success, have a clean record with the state bar, adhere to ethical standards, be empathetic to your needs and be someone you feel you can trust and relate to.
Colyn B. Desatnik is an experienced immigration attorney who has gone through the immigration process himself, over 35 years ago. He knows what it is like to be in your shoes. He has had first-hand experience. He knows how important the need to successfully immigrate is, and the anxiety that is involved in the process. You are entitled to the services of a skilled, committed and caring attorney who will guide you through the process and keep you informed on the status of your case throughout. This is a meaningful professional relationship. Therefore, you are best served by an immigration law office that is committed to an attorney-client relationship wherein you know that the case is being attended to by the attorney himself and not some paralegal that takes over the file after the interview.
Colyn B. Desatnik has been representing individual applicants from around the world for over 30 years. He enjoys an untarnished reputation for integrity with the Immigration Service, has a 99% success rate to date, and is committed to making your immigration experience as satisfying and stress free as possible. He is personally involved with every case and will be available to answer your every question himself. He will be with you every step of the way, from initial consultation to final processing. His job is not done until you receive everything that the law entitles you to. At the Law Offices of Colyn B. Desatnik you are never just a case or a case number. You are a valued client who is an individual or a family, paying for professional service, and the subject of our dedicated attention to all your reasonable needs. That is why we are able to say with conviction, and without hesitation that if we represent you, you can be assured that you are in the hands of the "right immigration lawyer".
Basic Immigration Terminology
Adjustment of status - The process by which a non-immigrants, asylees, or parolees apply for immigrant or lawful permanent resident status while they are in the United States.
Alien - A person who is not a citizen of the United States.
Alien Labor Certification - Certification by the U.S. Department of Labor that there is an insufficient number of U.S. workers who are able, willing, qualified, and immediately available at the place of proposed employment. It certifies that employment of the named alien will not adversely affect the wages and working conditions of U.S. workers similarly employed.
Alien Registration Receipt Card - The official name used in immigration law for a green card.
Amnesty - A government program that allows certain illegal aliens to remain lawfully in the U.S. and progress towards permanent residency and citizenship.
Asylum - The right to remain in the United States by showing a well-founded fear of persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion, if made to return to his or her country of nationality or last place of habitual residence. One of these five grounds of asylum must be proven in order for the individual to win an asylum claim. Asylees differ from refugees in that asylees are already in the United States when asserting their claim.
Change of Status - Changing from one non-immigrant visa to another.
Conditional Permanent Resident Status - A status conferred on an alien spouse and children at the time of obtaining lawful permanent residence, such status having been obtained on the basis of a marriage to a U.S. citizen or permanent resident spouse entered into less than two years prior to obtaining said status, or
A status conferred on an immigrant investor, in which case it applies to the investor and the members of his or her family.
Deportation - When an alien who has violated immigration laws is found to be removable from the United States.
Diversity Visa (the "green card lottery") - Generic name given to the immigrant visa lottery program established by the Immigration Act of 1990 that makes available up to 50,000 immigrant visas per federal fiscal year to persons from low-admission states and low-admission regions. The Diversity USA (DV) program is administered by the U.S. Department of State, which established the rules for the lottery and tracks the available visa numbers.
Dual Nationality - Possessing citizenship of more than one country simultaneously. Dual nationality can occur by birth in one country to parents who are citizens of another country, by marriage to a foreign national, or by foreign naturalization. While the U.S. government does not endorse dual nationality, it does recognize its existence and does not require a foreign citizen to give up his or her other nationality in order to become a U.S. citizen. Some countries, such as Germany, do not allow dual nationality and require relinquishment of any other nationality.
Green Card - The common name for the Alien Registration Receipt Card, which is issued to individuals who become legal permanent residents of the United States. While the card was once green, hence earning the nickname, it is presently pink. The card serves as a U.S. entry document, enabling permanent residents to return to the U.S. after temporary absences. The card and the benefits that come along with it are permanent, but you can forfeit it if you abandon your U.S. residence or commit certain types of crimes. A current, updated green card must be applied for every ten years, unless you become a citizen.
I-94 card - A card given to all non-immigrants when they enter the U.S to serve as evidence that a non-immigrant has entered the country legally. Before the I-94 card is handed out, it is stamped with a date indicating how long the nonimmigrant may stay in the U.S. for that trip. It is this date, not the expiration date of the visa, that controls how long a non-immigrant can remain in the U.S. Each time a non-immigrant legally enters the U.S., he or she receives a new I-94 card with a new date.
Immigrant - Any person who is residing in the United States as a legally recognized and lawfully recorded permanent resident. This is what every alien seeking entry to the United States is presumed to be unless they prove they are a non-immigrant with an intention to return to their home country.
Inadmissible - Aliens seeking entry who are disqualified because they are in some way undesirable . Most of these individuals are inadmissible because they have criminal records, certain health problems, commit certain criminal acts, are thought to be subversive, or are unable to support themselves financially.
National - A person owing permanent allegiance to a state.
National of the United States - A citizen of the United States or a person who, though not a citizen of the United States, owes permanent allegiance to the United States. Presently, the only noncitizen nationals of the United States are residents of the American Samoa and Swains Island.
Naturalization - When a person acquires nationality of a state or country that they are not a citizen of.
Nonimmigrant - A person coming to the United States temporarily for a specific purpose.
Parole - Under certain circumstances, a person may be allowed to enter the U.S. for humanitarian purposes, even when he or she does not meet the technical visa requirements. Those who are allowed to come to the U.S. without a visa in this manner are granted parole, and are known as parolees. Advance Parole may be granted to a person who is already in the U.S. but needs to leave temporarily, and return without a visa. This is common when someone has a green card application in process and needs to travel overseas.
Passport - A travel document that allows a person to gain admission into a foreign country. The document should show the bearer's origin, identity, and nationality.
Permanent Resident - A permanent resident is a non-U.S. citizen who has been given permission to live permanently in the U.S. If you acquire permanent residence, you will be issued a green card; therefore, the terms permanent resident and green card holder are synonymous. As a permanent resident, you may travel as much as you like, but your place of residence must be in the U.S. and you must keep that resident on a permanent basis.
Priority Date -The date on which you first entered the immigration application process is called the Priority Date. Since only a limited number of green cards are issued each year, you must wait your turn behind the others who have filed ahead of you. Your Priority Date marks your place in the waiting line. Each month the U.S. Department of State makes green cards available to all those who applied on or before a certain priority date. You can get a green card only when your date comes up on the DOS list.
Quota - Certain categories of qualified green card applicants are allowed into the U.S. in unlimited numbers. Certain other categories are restricted by a quota. Approximately 400,000 green cards can be issued each year under the quota, with no more than 25,000 going to applicants from any one country. If there are more green card applicants than there are green cards allocated under the quota each year, a backlog is created and applicants must wait their turns. It is because of the quota that it can often take years to get a green card.
Refugee - A person that is unable or unwilling to return to their country of nationality because of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. These individuals apply for status before coming to the United States.
Removal Proceedings - Removal (formerly 'deportation') Proceedings are carried on before a special immigration judge to decide whether or not an immigrant will be allowed to enter or remain in the country. While a person typically cannot be expelled without first going through a removal hearing, someone arriving at the border or a port of entry can be forced to leave without a hearing or ever seeing a judge.
Residence - An individual's one principal, actual dwelling place.
Special Immigrant - Common categories of special immigrants are workers for recognized religions, former U.S. government workers, and foreign doctors who have been practicing medicine in the United States for many years. There is an annual quota of 10,000 green cards that can be given to special immigrants.
Status - The name for the group of privileges you are given when you receive immigration benefits, either as a permanent resident or a non-immigrant. A person holds their status as long as they are on American soil. Once they leave American soil, they may lose that status. Permanent resident status is not lost by a temporary absence of less than one year from the United States.
Temporary Protected Status (TPS) - A temporary protected status is available to persons already in the U.S. who came from certain countries experiencing conditions of war or natural disasters. TPS allows someone to live and work in the U.S. for a period of not less than six months or no more than 18 months, but it does not lead to a green card. TPS is presently available to persons from Burundi, Nicaragua, El Salvador, Sierra Leone, Honduras, Somalia, Liberia, Sudan, and Montserrat.
Visa - A stamp placed in your passport by a U.S. consulate outside of the United States. All visas, which can be either immigrant or non-immigrant, serve as entry documents. Generally, visas can only be issued by a U.S. Consulate abroad.
Visa Waiver Program - The Visa Waiver Program (VWP) allows foreign nationals from certain countries to be admitted to the U.S. under limited conditions up to 90 days without obtaining a visa. The VWP permits nationals from designated countries to apply for admission to the United States for ninety (90) days or less as non-immigrant visitors for business or pleasure without first obtaining a non-immigrant visa. The following countries are presently participants in this program: Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and The United Kingdom.
Immigrant Visas
An immigrant is a foreign national who is authorized to live and work permanently in the United States. A Permanent Resident is not a citizen, although permanent resident status is a stepping stone to citizenship.
Immigration Through Employment
As an alien applicant, you will need to go through a multi-step process to become an immigrant based on employment. Most likely, you need to find an Employer to sponsor you. The sponsoring Employer offers you a job subject to you being approved for a green card by the US Citizenship and Immigration Service.
First the Sponsoring Employer must apply for and obtain a Labor Certificate to establish that there will be no adverse effect on the labor market if it were to hire you permanently. The Sponsoring Employer can then file an Immigrant Petition on your behalf on Form I-140. Once approved, you can then apply to adjust to permanent resident status when a visa number becomes available. If you are residing outside the United States when an immigrant visa number becomes available, you will be notified to go to the local U.S. Consulate to complete the processing for an immigrant visa.
Labor Certification
The U.S. Sponsoring Employer initiates the process by making an Application for Alien Certification on Form ETA 9089 filed with the U.S. Department of Labor accompanied with proof of recruitment efforts and advertising for US workers. If there are no available and willing US workers who come forward in response to the recruitment, a Labor Certificate is issued in favor of the Employer and Alien validating that the position is certified for the Alien to fill. A Labor Certificate is a pre-requisite that then entitles the U.S. Sponsoring Employer to then file an immigration petition for the alien employee based on Second Employment Based (EB-2) and Third Employment Based (EB-3) preference categories.
The Labor Certification requirement can be waived if the position is in the National Interest under EB-2. A labor Certificate is not required in an EB-1 petition.
First Employment Based (EB-1) Category
A First Preference Immigration Petition (EB-1) is an employment-based petition for permanent residence reserved for those who are among the most able and accomplished in their respective fields within the arts, sciences, education, business, or sports. There are three (3) types of EB-1 petitions:
- Aliens of Extraordinary Ability EB-1(a)
- Outstanding Researchers/Outstanding Professors EB-1(b)
- Managers and Executive Transferees EB-1(c)
The most notable advantage for those who qualify for an EB-1 petition is the lack of a Labor Certification requirement.
Second Employment Based (EB-2) Category
A Second Preference Immigration Petition (EB-2) is an employment-based petition for permanent residence reserved for members of the professions holding advanced degree or aliens of exceptional ability. Applicants must have a job offer and labor certification. However, USCIS may waive the job offer and labor certification requirements if it is in the national interest to do so.
Third Employment Based (EB-3) Category
A Third Preference Immigration Petition (EB-3) is an employment-based petition for permanent residence reserved for skilled workers, professionals and other workers including foreign nationals with less than two years of training and work experience. All applicants in EB-3 category must have a job offer and labor certification.
Visa Descriptions
Most Popular Non-Immigrant Visas
Nonimmigrant visas are available for a variety of purposes (tourism, business, medical treatment, study, cultural exchange, trade, investment and certain types of temporary work. Each non-immigrant visa has its own specific purpose and character. They are listed alphabetically, and have in common that they afford permission to be in the U.S. temporarily. Some of these visas (eg. visitor, business visitor, student,etc) are applied for at the US Consulate where the applicant resides. Other visas (work visas, investor and trade visas etc) must be petitioned for initially by filing a petition with the US Citizenship and Immigration Service in the US. Once adjudicated and approved in the US, the applicant can then apply to the US Consulate for visa issuance into his/her passport. The visa in the passport issued by the Consulate ONLY GIVES THE HOLDER PERMISSION TO TRAVEL TO A U.S. PORT OF ENTRY. IT DOES NOT GUARANTEE ENTRY. AT THE PORT OF ENTRY THE VISA HOLDER MUST PRESENT HIS VISA AND EXPLAIN THE PURPOSE HE REQUIRES TO ENTER FOR. THAT PURPOSE MUST BE CONSISTENT WITH THE CHARACTER AND NATURE OF THE VISA THAT HE/SHE HAS RECEIVED FROM THE CONSULATE. IF THE APPLICANT CANNOT ARTICULATE THIS PURPOSE, HE/SHE CAN BE DENIED ENTRY. IF APPROVED, THE OFFICER AT THE PORT OF ENTRY WILL ISSUE YOU WITH AN ENTRY DOCUMENT WHICH WILL SET THE DURATION THAT YOU ARE ALLOWED TO STAY IN THE U.S. THIS DOCUMENT, CALLED AN I-94 IS THE VISA THAT GOVERNS THE DURATION OF YOUR STAY--NOT YOUR CONSULAR VISA.
Our law office will help you select the correct visa category; accurately and intelligently complete the forms, arrange the necessary supporting documents; and cite the law under which you are eligible for the visa that you seek. We monitor the petition and make a part of our fee contingent on approval. Advance planning and representation will smooth the visa application process for you, and avoid the nightmare of your being denied either at the Consulate or at the port of entry.
These are the most common non-immigrant visas:
B-1 (Business Visitor): This visa covers business related trips for a short duration. A B-1 will usually be granted for a period of time necessary to conduct the alien's business, not more than 6 months initially. Business visitor cannot be employed in the U.S. and be compensated for services rendered in the U.S. The business visitor must maintain a residence abroad which he/she has no intention of abandoning.
B-2 (Tourist Visa): This visa covers short visits for pleasure such as tourism or visiting a family member. The I-94 entry document may be issued for up to 6 months initially
E-1 (Treaty Trader Visa): An E-1 non-immigrant is a national of a country with whom the U.S. has a treaty of commerce and navigation, who seeks entry to the U.S. in order to carry on substantial trade (Import or Export) which is international in scope principally between U.S. and the national's country.
E-2 (Investor Visa): An E-2 non-immigrant is a national of a country with whom the U.S. has a treaty of commerce and navigation, who seeks entry to the U.S. in order to develop and direct the operations of an enterprise in which s/he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital (at least $50,000, but more realistically upward of $100,000).
F-1 category: Those who wish to pursue full time academic studies in the U.S. can apply for an F-1 visa. You can be admitted under this category and remain in the United States for as long as it takes to complete your intended course of study. You may also engage in a specific period of practical training (OPT) after completion of your studies. You can apply for an F-1 visa at the U.S. consulate provided you have first obtained a certificate of eligibility from the academic institution you plan to attend (Form I-20).
H-1B category: The H-1B classification allows professionals to work in the U.S., on a temporary basis, within their profession. It is suitable and ideal for engineers, nurses, professors, researchers, computer programmers and other professionals. The H-1B category is designed to attract highly skilled professionals to work in the U.S. on a temporary basis. H-1B classification is available only to workers in occupations requiring highly specialized knowledge normally acquired through attainment of a four-year college degree. The applicant must possess at least a bachelor's degree, or its equivalent. The H-1B visa allows specialty occupation workers to enter the United States and work in a professional capacity for a maximum period of six years. In this category, the U.S. employer petitions the USCIS for the alien's entry to the United States for purposes of working with that employer. There is no foreign residency requirement, and the alien may apply for permanent residence while he is in H-1 status or before or after he applies for an H-1B visa.
H-3 category: This category allows for a temporary worker to be invited by an individual or organization for purposes of receiving instruction and training other than to receive graduate medical education or training. The training program must be one that is not designed primarily to provide productive employment.
H-4 category: H-4 visas are issued to H-1 holders' spouses and children under twenty-one years of age. H-4 holders are considered to be the dependents of H-1 holders. Spouses and children under twenty-one years of age may be entitled to enter and remain in the United States for the duration of the H-1 holder's authorized stay, as H-4 status holders. Their duration of valid stay is the same as that of the H-1 holder. H-4 holders are permitted to attend school on their H-4 status, and they do not have to be full time students. H-4 holders are not permitted to work.
J-1 category: A J-1 Visa is a special form of non-immigrant visa for 'exchange visitors.' To obtain a J-1 Visa, you must be sponsored by an employer working through an authorized Exchange Visitor Program. J-1 holders may apply to work for the program sponsor or a qualifying employer under the Program. The duration of J-1 status depends on the J-1 holder's program, as set forth in the IAP-66, Certificate of Eligibility. A J-1 holder may extend his stay up to the maximum duration of stay for the program, provided his program sponsor agrees to the extension. Certain J-1 holders are required to return to their home country or country of last permanent residency for a period of two years after completion of J-1 status before they can be eligible to change or adjust status. There are a limited number of circumstances where the foreign residency return requirement can be waived.
L-1A category: This category allows international companies to bring managerial and executive aliens to the United States to work in the United States for a limited period of time (up to 7 years). In this category, the employer must first file a petition with the USCIS in order to obtain permission to transfer the alien to the company's U.S. location for a limited initial period of one year or up to three years. The employer must be engaged prospectively in regular and systematic business activity in the U.S. and at least one other country. The alien employee must have worked abroad for the overseas company for a continuous period of one year in the preceding three years. Importantly, the transferee must have been employed abroad in an executive or managerial position, and he must be coming to the U.S. to fill one of those capacities. In this category, the alien must have an intent to depart the U.S. upon completion of his authorized stay, however, he may also pursue an application for permanent residence at the same time.
L-1B category: This category contains many of the same requirements as the L-1A category and allows the beneficiary to remain in the U.S. for a limited period of up to 5 years. The alien must have 'specialized knowledge' which is defined as special knowledge of the company product, service, research, equipment, techniques, management or other interests and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.
L-2 visas may be issued to an L-1 holder's spouse and children under twenty-one years of age. L-2 holders are considered to be the derivative dependents of L-1 holders. L-2 holders may be entitled to enter and remain in the United States for the duration of the L-1 holder's authorized stay. Their duration of valid stay is the same as that of the L-1 holder. L-2 holders are permitted to attend school on their L-2 status, and they do not have to be full-time students. L-2 holders are not permitted to work unless they obtain work authorization.
O category: To qualify under this category, the alien must have an outstanding/extraordinary ability in the sciences, arts, education, business, or athletics. Different standards of eligibility apply for the various fields listed above. The alien must be coming to the United States to work in his area of extraordinary ability or achievement. Under this category, the initial period of the alien's stay in the United States is approved for the time necessary to complete the activity for which the alien is admitted, up to a period of three years. Approval must be obtained from the USCIS prior to the alien applying for this visa at the U.S. consulate. An alien can apply for permanent residence while holding this visa.
P category: This category is for entertainers and athletes who cannot qualify under the extraordinary ability standard for the O category. To qualify, the alien must either be an athlete who competes individually or as part of a team at an internationally recognized level, or be an essential part of an entertainment group that has received qualifying international recognition.
K-1 visas are issued to the fianc's (or fianc's) of U.S. citizens. The purpose of the K-1 visa is to allow the fianc's of U.S. citizens to travel to the United States for the purpose of marriage. The maximum period of stay in the U.S. is ninety days, within which the marriage must occur or visa status will expire. A K-1 holder cannot change his K-1 status. Once the K-1 holder marries the U.S. citizen within the authorized time period, he may apply to adjust his status to permanent resident status.