Tuesday, September 5, 2017

About Visas - The Basics

Visa Types

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What types of visas are available for people to come to the United States?
There are more than 20 nonimmigrant visa types for people traveling to the United States temporarily. There are many more types of immigrant visas for those coming to live permanently in the United States. The type of Visa you need is determined by the purpose of your intended travel. For an overview of visa types, please see Types of Visas for Temporary Visitors or Visa Types for Immigrants.

After Visa Issuance

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How do I read and understand my visa?
My visa expires in 5 years, what does this mean?

Visa Validity

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My old passport has already expired. My visa to travel to the United States is still valid but in my expired passport. Do I need to apply for a new visa with my new passport?
No. If your visa is still valid you can travel to the United States with your two passports, as long as the visa is valid, not damaged, and is the appropriate type of visa required for your principal purpose of travel. (Example: tourist visa, when your principal purpose of travel is tourism). Both passports (the valid and the expired one with the visa) should be from the same country and type (Example: both Uruguayan regular passports, both official passports, etc.). When you arrive at the U.S. port-of-entry (POE, generally an airport or land border) the Customs and Border Protection Immigration Officer will check your visa in the old passport and if s/he decides to admit you into the United States they will stamp your new passport with an admission stamp along with the annotation "VIOPP" (visa in other passport). Do not try to remove the visa from your old passport and stick it into the new valid passport. If you do so, your visa will no longer be valid.
My visa will expire while I am in the United States. Is there a problem with that?
No. If the Department of Homeland Security, Customs and Border Protection Immigration Officer at the port-of-entry admitted you into the United States for a specific period of time, s/he will note your authorized period of stay on your admission stamp or paper Form I-94, called an Arrival/Departure Record. You will be able to remain in the United States during your authorized period of stay, even if your visa expires during the time you are in the United States. Since your admission stamp or paper Form I-94 documents your authorized stay and is the official record of your permission to be in the United States, it is very important to keep inside your passport.
What are indefinite validity visas (Burroughs visas) and are they still valid?
Indefinite validity visas (Burroughs Visas) are tourist/business visas manually stamped into a traveler’s passport which were valid for ten years. Effective April 1, 2004, all indefinite validity Burroughs visas became void. Therefore, if you have an indefinite validity visa you must apply for a new visa for travel to the U.S.
I changed my name. Is my U.S. visa with my old name still valid?
If your name has legally changed through marriage, divorce, or a court ordered name change, you will need to obtain a new passport.  Once you have a new passport, the Department of State recommends that you apply for a new U.S. visa to make it easier for you to travel to and from the United States.

Administrative Processing

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What is Administrative Processing?
Some visa applications require further administrative processing, which takes additional time after the visa applicant's interview by a consular officer. Applicants are advised of this requirement when they apply. Most administrative processing is resolved within 60 days of the visa interview. Learn more.

Visa Denials

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My visa application has been refused. Why can't I get my money back?
The fee that you paid is an application fee. Everyone who applies for a U.S. visa anywhere in the world must pay this fee, which covers the cost of processing your application. This fee is non-refundable regardless of whether you are issued a visa or not, since your application was processed to conclusion. As one example, if your application was refused under Section 214(b) and you choose to reapply for a visa, whether applying at the same embassy or elsewhere, you will be required to pay the visa application processing fee. See the Fees for Visa Services page for a list of fees.

Renewals

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I have a nonimmigrant visa that will expire soon and I would like to renew it. Do I need go through the whole visa application process again?
Yes, you will have to go through the whole visa application process each time you want to apply for a visa, even if your visa is still valid. There are some situations where a visa applicant may not need to be interviewed when renewing his/her visa. See the U.S. Embassy or Consulate website for more information.

Entering and Departing the United States

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After I have my visa, I will be able to enter the U.S., correct?
A visa does not guarantee entry into the United States. A visa allows a foreign citizen to travel to the U.S. port-of-entry, and the Department of Homeland Security U.S. Customs and Border Protection (CBP) immigration inspector authorizes or denies admission to the United States. See Admissions on the CBP website.
How can I find out how long I am authorized to stay in the United States?
A visa does not guarantee entry into the United States, but allows a foreign citizen coming from abroad, to travel to the United States port-of entry (generally an airport or land border) and request permission to enter the United States. The Department of Homeland Security, U.S. Customs and Border Protection (CBP) officials have authority to permit or deny admission to the United States, and determine how long a traveler may stay. At the port of entry, upon granting entry to the United States, the Department of Homeland Security, U.S. immigration inspector, provides you an admission stamp or paper Form I-94, Arrival/Departure Record in your passport. On this admission stamp or paper form, the U.S. immigration inspector records either a date or "D/S" (duration of status). If your I-94 contains a specific date, then that is the date by which you must leave the United States. Your admission stamp or paper Form I-94 is very important to keep in your passport, since it shows your permission to be in the United States. Review information about Admission on the CBP Website. Also, see Duration of Stay.
I did not turn in my paper Form I-94 when I left the United States, what should I do?
If you failed to turn in your paper Form I-94 Departure Record, see Department of Homeland Security, Customs and Border Protectionwebsite for more information.

Lost, Stolen or Damaged Visas

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My passport with my visa was stolen, what should I do?
If your passport with your admission stamp or paper Form I-94 are lost or stolen, you must get them replaced immediately. There are a number of steps you need to take, learn more, see Lost and Stolen Passports, Visas, and Form I-94s.
My visa was damaged. What should I do?
If your visa has been damaged in any way, you will need to reapply for a new visa at a U.S. Embassy or Consulate abroad. 

U.S. Citizens

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I may have a claim to U.S. citizenship. Can I apply for a U.S. visa?
With few exceptions, a person born in the United States acquires U.S. citizenship at birth. A state-issued birth certificate serves as evidence of citizenship. Review the Apply for a Passport webpage to learn more.
Persons born in countries other than the United States may have a claim to U.S. citizenship if either parent is a U.S. citizen under U.S. law. Learn more on the Birth of U.S. Citizens Abroad webpage.
If a person is a U.S. citizen, he or she is not eligible for a visa. Any prospective applicant believing he or she may have a claim to U.S. citizenship should have his or her citizenship claim adjudicated (officially determined) by a consular officer at a U.S. Embassy or Consulate before applying for a U.S. visa.  

I have dual citizenship. Which passport should I use to travel to the United States?
All U.S. citizens, even dual citizens/nationals, must enter and depart the United States using his/her U.S. passport.

Further Questions

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How do I know whether to contact the Department of State or Department of Homeland Security about my issue?
Contact the Department of State, U.S. Embassy or Consulate abroad with questions about U.S. visas, including application, the status of visa processing, and for inquiries relating to visa denial. Once in the United States, the traveler falls under the authority (jurisdiction) of Department of Homeland Security. The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) is responsible for the approval of all petitions, the authorization of permission to work in the United States, the issuance of extensions of stay, and change or adjustment of an applicant's status while the applicant is in the United States.
I would like to know if my friend has applied for a visa and what the status is. Who should I contact?
Your friend, the visa applicant. Under U.S. law, specifically the Immigration and Nationality Act (INA) 222(f), visa records are confidential. Therefore, the visa applicant should inquire at the U.S. Embassy or Consulate abroad where he/she applied regarding necessary information about visa application status. Because of confidentiality of visa records, you’ll need to ask your friend, the visa applicant your questions about whether a visa application was made, or a visa was issued or denied.
Visa Applicants from State Sponsors of Terrorism Countries
To find information regarding FAQ's from visa applicants from state sponsors of terrorism countries please click here.

New defense for permanent residents with aggravated felonies

Many lawful permanent residents convicted of aggravated felonies now have a defense to removal after the recent Ninth Circuit decision, Negrete-Ramirez v. Holder.  The court held that adjustment of status does not prevent aggravated felons from applying for waivers of inadmissibility under Immigration and Nationality Act § 212(h).  This overturns the government's earlier ruling that no lawful permanent residents convicted of aggravated felonies could apply for 212(h) waivers.  Furthermore, the court's reasoning should also eliminate a seven-year residency requirement for those lawful permanent residents who adjusted their status.
What does this mean? Who does the change in law help? This post helps to answer these questions, and provide some important cautions.
Please note- the court's decision is based on very technical legal analysis. While it is vital for any immigration attorney working on 212(h) issues to understand the court's reasoning, this post focuses primarily on the end result of the decision and who it helps.
What is admissibility, and why is it important?
INA § 212(h) provides a waiver of inadmissibility for some criminal violations. Understanding why it is important, especially for lawful permanent residents, first requires understanding what "admissibility" means in immigration law.
Generally, non-citizens trying to enter the United States must demonstrate they are "admissible", meaning they meet the legal requirements at Immigration and Nationality Act § 212 to be admitted.  Of special relevance here, many kinds of criminal convictions can make a non-citizen inadmissible.
Secondarily, admissibility is very important for foreign nationals who are already in the U.S. if they apply for lawful permanent residency without leaving the country. This process, called "adjustment of status", requires applicants to demonstrate they are "admissible".  That is, even though they do not physically leave the U.S., they generally have to meet the same requirements as someone coming to this country from abroad.
Admissibility and Lawful Permanent Residents in Removal Proceedings
Even though lawful permanent residents are generally allowed to live in the United States, those who have committed crimes often have to fight to remain in the country. If they travel abroad after a criminal conviction, lawful permanent residents may be found "inadmissible" at the border of a port of entry when they come back. They will normally be allowed to physically enter the U.S., but will be placed in removal proceedings to determine if they will be allowed to stay.
Also, many lawful permanent residents in removal proceedings confront inadmissibility issues without even leaving the U.S. Some lawful permanent residents placed in removal proceedings for criminal convictions will reapply for adjustment of status as a defense to deportation. Even though this sounds strange- lawful permanent residents are applying to "adjust" their status but remain residents- the new application for adjustment of status can overcome the violation which placed the resident in removal proceedings.
There is a catch, however, since applicants for adjustment of status must be admissible. Lawful permanent residents who wish to reapply for adjustment of status in removal proceedings are often inadmissible because of the criminal convictions which led to their removal proceedings in the first place.
Waivers of inadmissibility at INA § 212(h)
An inadmissible foreign national might be able to stay in the United States by applying for a waiver of inadmissibility. Some- but not all- grounds of inadmissibility can be waived, but those waivers have requirements which limit their availability.
The only waiver for criminal grounds of inadmissibility is at INA § 212(h). Most importantly, 212(h) can waive inadmissibility for crimes involving moral turpitude, but not most controlled substances offenses.
In addition to the other requirements of INA § 212(h), there is a special concern for lawful permanent residents. As applied by the government, lawful permanent residents could not apply for a 212(h) waiver if they had committed an aggravated felony or had not been a resident for at least seven years before being placed in removal proceedings.
Both the seven year requirement and aggravated felony bar meant that many lawful permanent residents placed in removal proceedings could not apply for a 212(h) waiver. This is a potentially a huge problem for lawful permanent residents because the main defense to removal for them is not available for aggravated felons and has a similar seven-year residence requirement.
This means that lawful permanent residents who have been convicted of aggravated felonies- which can include some relatively minor offenses which are not felonies under state law- often have no defense to their removal. Similarly, permanent residents with even more minor deportable convictions will be defenseless if they have not been residents long enough.
The Negrete-Ramirez decision, however, provides a lifeline to some lawful permanent residents. Now, adjustment of status does NOT trigger the aggravated felony bar. From the wording of the case, it also appears that adjustment of status does not trigger the seven-year requirement.
While the law in other circuits varies (many other circuits have cases similar to Negrete-Ramirez, but others do not), this change will now give a new defense to many lawful permanent residents in the Ninth Circuit who may have otherwise had no relief. Many lawful permanent residents already in removal proceedings will need to re-evaluate their options, and this is an important consideration for residents in criminal negotiations.
Notes of caution
While Negrete-Ramirez is a very important case, lawful permanent residents and their attorneys need to keep in mind some key cautions, including:
- Lawful permanent residents who obtained their residency after a consular interview abroad are still subject the seven-year and aggravated felony bars to 212(h);
- 212(h) does not waive most controlled substances or any drug trafficking offenses;
-It is not certain that lawful permanent residents who adjusted their status, then departed and re-entered the U.S. are exempt from the aggravated felony and seven-year bars. There are strong arguments they are, but this has not been conclusively resolved.
- This waiver only helps those who are otherwise admissible or eligible for adjustment of status or can get a waiver of other grounds of inadmissibility. For example, residents wishing to apply for adjustment of status, they still need an approved, current visa petition.
- With limited exceptions, 212(h) waivers are only available to applicants who demonstrate their removal would cause extreme hardship to a lawful permanent resident or United States citizen spouse, son, daughter or parent. Those without qualifying relatives will normally be unable to even apply for the waiver.
-Even for those who are eligible to apply, 212(h) waivers are tough to get and frequently denied. The "extreme hardship" standard requires suffering beyond what would result from a "typical" deportation.
Conclusion
Many lawful permanent residents now have a new defense to removal through a 212(h) waiver- even if they have been convicted of an aggravated felony or have not been a resident for seven years. Nonetheless, determining whether a lawful permanent resident is eligible for a 212(h) waiver, much less successfully obtaining one can be very challenging. Lawful permanent residents in removal or criminal proceedings should consult with an experienced attorney if they think they may benefit from a 212(h) waiver.

Friday, September 1, 2017

Eligibility Requirements for a VAWA(abusing spouse or parent or child of  USC or Resident) Green Card


Certain sections of the Violence Against Women Act (VAWA) provide immigration benefits to eligible spouses, parents, and children who have been victims of abusive U.S. citizens or Lawful Permanent Residents. Under VAWA, certain foreign nationals no longer have to rely on their family-member abusers to help them obtain lawful status in the United States and may self-petition for a green card. This article will help you determine whether you are eligible for a green card under VAWA.

Eligibility Requirements for a VAWA Green Card

In order to qualify for a green card under VAWA, you must prove that you meet the requirements (depending upon whether you are the parent, child, or spouse of a U.S. citizen or permanent resident), described below. Despite the name of the law, VAWA applies equally to both male and female petitioners.

1. The Abuser Is (or Was) a U.S. Citizen or Lawful Permanent Resident

Your qualifying relative must have been a U.S. citizen (USC) or Lawful Permanent Resident (LPR). You may still file a petition under VAWA if the abuse occurred before the abuser became a citizen or green card holder. In addition, you can file a petition under VAWA even if the abuser loses his or her U.S. permanent residence or citizenship. If your abusive family member loses LPR status because of an incident of domestic violence, you must file the petition within two years of the abuser losing status.

2. You Are (or Were) the Spouse or Child of a LPR or USC Abuser or the Parent of a USC Abuser

VAWA green cards are available to the battered spouses (and ex-spouses) and children of USCs and LPRs. and the battered parents of USC children who are at least 21 years old at the time of the application. Unmarried children under 21 can be included on a battered spouse's (or ex-spouse's) VAWA self-petition.
For ex-spouses, if marriage ends in divorce because of abuse or cruelty, you can still file a VAWA petition within two years of the end of the marriage. Similarly, if the abuser dies, you can file a VAWA petition within two years of the death. If the marriage ends after a petition is filed, then it has no effect on the VAWA petition. However, if you remarry prior to the approval of the VAWA petition, the petition will be denied.

3. There Was Abuse or Battery During the Relationship


In addition, USCIS will consider emotional abuse, controlling behaviors, threats to harm or deport you, forcibly detaining you against your will, and other behaviors used to scare you. This is not an exhaustive list, and USCIS will consider the totality of the circumstances when deciding whether you have been subjected to battery or extreme cruelty.The law requires the self-petitioner to show that he or she “has been been battered or has been the subject of extreme cruelty" by the LPR or USC family member. Examples of "battery" include physical violence and sexual abuse. U.S. Citizenship and Immigration Services (USCIS) considers emotional abuse, controlling behaviors, threats to harm or deport you, forcible detention, and other threatening behaviors to be "extreme cruelty."

4. Spouses Must Have Entered the Marriage With the USC or LPR in Good Faith

"Good faith" means that the marriage with your LPR or USC spouse was genuine and not entered into solely in order to obtain a green card. If the marriage is fraudulent, you will not qualify for a green card through VAWA, just as you would not qualify for a green card using the normal petitioning procedures.

5. You Must Reside in the U.S. (With Few Exceptions)

In most cases, you must reside in the U.S. in order to file a petition under VAWA. However, you can file if you are living abroad if the abuser is an employee of the U.S. government or armed services, or the abuse occurred in the United States.

6. You Must Have Lived With the LPR or USC Abuser at Some Point

There is no length of time that you must have lived with the abuser and you do not have to currently be living with the abuser when you file for a green card under VAWA. VAWA does not specify what it means to "live with" the abuser, so even if you only spent a short amount of time in the same house or apartment with the abuser, this may be enough to meet this requirement.

7. You Must Be a Person of Good Moral Character

In order to qualify for relief under VAWA, you need to have been a person of good moral character for at least the past three years. Some things that may prevent you from showing good moral character are: a criminal history, being a habitual drunkard, using drugs, illegal gambling, lying under oath, or persecuting or harming others.
As part of the  application process  for a green card under VAWA, you will need to demonstrate that you meet the above eligibility criteria, using official documents and statements.

 What is a “qualifying relationship” for L-1 visa between the two companies that transfer a manger?
Whether a qualifying relationship between business entities exists is generally based on showing the existence of two aspects: ownership and control. Ownership is the legal right of possession with full power and authority to control. Control is the right and authority to direct the management and operations of the business entity. A business entity for L-1 purposes is defined as a parent, subsidiary, affiliate, or branch.
19.  What is a parent?
A parent is defined as a firm, corporation, or other legal entity that has subsidiaries.

20.  What is a subsidiary?
A subsidiary is defined as a firm, corporation, or other legal entity of which a parent directly or indirectly owns at least 50% and controls. Alternatively, the parent can directly or indirectly own 50% of a 50-50 joint venture and have equal control and veto power over the entity. Finally, the parent can directly or indirectly own less than 50% of the entity if the parent controls the entity in fact.

21.  What is an affiliate?
An affiliate is defined as one of two subsidiaries, both of which are owned and controlled by the same parent or individual. An affiliate can also be one of two legal entities, both of .
which are owned and controlled by the same group of individuals, if each individual owns and controls about the same percentage of each entity

22.  What is a branch?
A branch is defined as an operating division or office of the same company that is located and housed in a different location.