STEPHEN C. GIAMETTA
& Associates, P.C.
Civil Litigation, Elder Law, Immigration, Collections, Appeals and Criminal Defense
PHONE: 631-743-0LAW (0529)
New Your State (Suffolk, Nassau, Bronx, Queens, Brooklyn or New York County).
Immigration is a complicated area of the law, and one that might seem somewhat scary. The one thing that you have to remember is that there are many options in the area of immigration. We will give you an honest evaluation to let you know whether or not one of those options is available to your particular situation. We also have the ability to speak to you in Spanish and Portuguese, and if you speak another language we will do our best to accommodate you as well. So please feel free to call us today to determine if there is a way that we can assist you with your immigration needs.
Family Based Immigration
*The information found on this website is not legal advice, and should not be considered as such or be relied upon in any way. Moreover, the below is provided as a general guide, and to list the basics elements of immigration law. There are many exceptions to the general rules, however, so if you believe you will or will not qualify for a Visa, Green Card or Naturalization, please contact us to discuss before making your final decision. In addition, as with all petitions, what can be confusing and what is extremely important is knowing the proper forms and evidence to include to give your petition the best chance of being granted. For this reason as well, we urge you to contact us when you are ready to proceed.
How Immigration Works
What is a Visa?
The difference between a visa and a green card is that a Visa simply allows an individual to appear at a border or port of entry to seek access in to the United States. The Customs or Border Protection officer then makes the decision whether to allow the person into the country, although a Visa typically means one is permitted to enter. In form, a Visa is nothing more than a stamp in a passport (sometimes it's a separate document).
If you are being granted a Visa you will receive instructions to proceed to the U.S. consulate in your country of residence to pick up your Visa, which means you will be getting a stamp in your passport or an equivalent document that allows you to enter the United States. A Visa does not make you a lawful permanent U.S. resident though.
Immigrant vs. Non-Immigrant Visa
The type of visa you should seek is determined by the purpose of your travel to the United States. An immigrant visa (IV) is issued to a person wishing to live permanently in the U.S. A nonimmigrant visa (NIV) is issued to a person with permanent residence outside the United States, but wishes to be in the U.S. on a temporary basis for tourism, medical treatment, business, temporary work or study, as examples.
Family-Based Immigrant Visas
Two groups of family based immigrant visa categories, including immediate relatives and family preference categories, are provided under the provisions of United States immigration law, specifically the Immigration and Nationality Act (INA).
Immediate Relative Immigrant Visas (Unlimited): These visa types are based on a close family relationship with a United States (U.S.) citizen described as an Immediate Relative (IR). The number of immigrants in these categories is not limited each fiscal year. Immediate relative visa types include:
IR-1: Spouse of a U.S. Citizen
IR-2: Unmarried Child Under 21 Years of Age of a U.S. Citizen
IR-3: Orphan adopted abroad by a U.S. Citizen
IR-4: Orphan to be adopted in the U.S. by a U.S. citizen
IR-5: Parent of a U.S. Citizen who is at least 21 years old
Family Preference Immigrant Visas (Limited): These visa types are for specific, more distant, family relationships with a U.S. citizen and some specified relationships with a Lawful Permanent Resident (LPR). There are fiscal year numerical limitations on family preference immigrants, shown at the end of each category. The family preference categories are:
Family First Preference (F1): Unmarried sons and daughters of U.S. citizens, and their minor children, if any. (limited to 23,400)
Family Second Preference (F2): Spouses, minor children, and unmarried sons and daughters (age 21 and over) of LPRs. At least seventy-seven percent of all visas available for this category will go to the spouses and children; the remainder is allocated to unmarried sons and daughters. (limited to 114,200)
Family Third Preference (F3): Married sons and daughters of U.S. citizens, and their spouses and minor children. (limited to 23,400)
Family Fourth Preference (F4): Brothers and sisters of U.S. citizens, and their spouses and minor children, provided the U.S. citizens are at least 21 years of age. (limited to 65,000)
Note: Grandparents, aunts, uncles, in-laws, and cousins cannot sponsor a relative for immigration.
Employment Based Immigrant Visa
There are many types of employment based Visas, so it is difficult to touch of each of them herein. We urge you to contact us, however, to determine if there may be a category that fits your particular situations. What is listed below, however, are some of the more common types of employment based Visas.
First Preference Immigrant Worker [H-1B]
We spend the most time on this type because it is by far the most common. An H-1B Visa is valid for three (3) years, and may be extended to six (6) years, although there are some exceptions. To qualify for an H-1B Visa, the individual petitioning for such must hold a bachelor's or higher degree from an accredited college or university in a specialty occupation (see below) or, if the individual has a foreign degree, it must be the educational equivalent of a U.S. bachelor's degree. Specialty occupations vary, but include things like the social sciences, architecture, education, law, accounting, engineering, physical sciences, biotechnology, health and medicine, business specialties, mathematics, the arts and theology. Through specialized training, work experience and education it may also be possible to achieve the equivalent of the education required for an H-1B Visa without obtaining the actual education.
Prior to filing a Petition for an H-1B Visa there must be an employer willing to sponsor the individual seeking such. If so, other than the payment of appropriate filing fees, the necessary steps are to file a Labor Condition Application with the U.S. Department of Labor. The purpose of this is to make sure that the worker in question is paid at or above the amount the prevailing wage in the area of employment in question. Once this application is certified by the U.S. Department of Labor it is filed with the actual H-1B Petition.
Finally, the timing of an H-1B Visa application is tremendously important, as the first day to file such every year is on April 1st. Moreover, there are only 65,000 H-1B Visas available every year (an additional 20,000 are available for those who hold a master's or higher degree, as well as separate number for citizens of Chile and Singapore), and it is typical that this 65,000 cap is reached by the end of the first week in April. It must be noted, however, that not every H-1B is counted against this cap so we urge you to contact us to determine if your particular situation may be considered "cap exempt".
Second Preference Immigrant Worker
The individual is a member of a profession that requires an advanced degree, or
has exceptional ability in the sciences, arts, or business, or
is seeking a national interest waiver.
Third Preference Immigrant Worker
The individual is a skilled worker (job must require a minimum of 2 years training or work experience), or
is a professional (job requires at least a U.S. bachelor's degree or a foreign equivalent and you are a member of the profession), or
an unskilled worker (performs unskilled labor requiring less than 2 years training or experience).
An EB-5 Visa is available to those who have invested or are now in the process of investing at least $1 million in a new business in the United States that will create full-time jobs for at least 10 qualifying employees. If the business is in a targeted employment area the investment need only be $500,000. An EB-5 Petition may be the best alternative for the correct individual, especially since it also grants a Visa for the family members of said individual (spouse and unmarried children under 21 years of age). The requirements are much too specific to go through here, however, so please feel free to contact us to review your specific details. Moreover, there are other ways for investors to immigrate to the U.S., so we once again urge you to contact us to discuss.
*You may also qualify for an employment based visa if you are a physician who agrees to work full-time in clinical practice in a designated underserved area for a set period of time and also meets other eligibility requirements.
Fiancé Visa (K-1)
A U.S. citizen can petition for his or her fiancé to obtain what is referred to as a K-1 visa. This visa permits the fiancé to travel to the U.S. and seek admission at the border. Once admitted, the fiancé and the U.S. citizen who petitioned for the fiancé must enter into a legal, legitimate marriage, which is referred to as a bona fide marriage.
Once the marriage occurs, the fiancé (who is now the spouse of the U.S. citizen) can apply to be a lawful permanent resident (green card). To be eligible the spouse must meet the following criteria:
(1) Be present in the United States at the time the filing takes place.
(2) Entered the U.S. on a K-1 Visa, and entered into a true, honest marriage with the petitioner within 90 days of coming to the U.S.
(3) Be eligible for an immigrant visa, which you will be if the second criteria is met. This is because once the marriage takes place the fiancé (now spouse) is an immediate relative of the person who petitioned for him or her, and immigrant visas for immediate relatives of U.S. citizens are always immediately available.
(4) an immigrant visa must be immediately available at the time the filing for the green card takes place AND when USCIS makes a final decision on the application (both of which will be if the second criteria is met).
(5) No bars to adjustment of status apply.
(6) must be admissible to the United States for lawful permanent residence or if grounds of inadmissibility apply, must be eligible for a waiver of inadmissibility or other form of relief; and (7) must merit the favorable exercise of the discretion of the USCIS.
*If you enter the U.S. on a K-1 Visa, but fail to marry the petitioner, other than some very limited exceptions you cannot apply for a Green Card based on any other category.
**K2 Visa – Derivative Applicant – A K-2 Visa permits a child of a K-1 Visa holder to enter the United States. If you are the child of a K-1 nonimmigrant, and were admitted to the United States as a K-2 nonimmigrant, you can be considered a derivative applicant under the following conditions: (a) your parent married the petitioner within 90 days of entry as a K-1, and (b) you are unmarried. If so, you can apply for a Green Card. This should be done at the same time or after your K-1 nonimmigrant parent applies for a Green Card.
K3 and K4 Visas are essentially the equivalent of the K1 and K2 Visa, except that they apply to the spouse of the applicant rather than the fiancé. It permits the spouse (and unmarried child under 21 years of age) to enter the U.S. while awaiting approval of the immigrant Visa petition.
What is a Green Card?
If you intend to make the United States your primary and permanent place of residence you can apply for a green card, which means that you are a lawful permanent U.S. resident. In form, this is nothing more than a plastic photo identification card. If you are a permanent resident age 18 or older, you are required to have a valid Green Card in your possession at all times. If you are a permanent resident and your card is valid for 10 years you need to renew your Green Card if it is expired or will expire within the next 6 months.
Green cards refer to lawful permanent residence, but also to lawful conditional residence. A conditional resident receives a Green Card valid for 2 years. A 2-Year card cannot be renewed. Instead, the conditions must be removed or you will lose your permanent resident status.
To obtain a green card you must show that you will not become a public charge. This must be done at the time of you application. A public charge is when a person relies on money from the U.S. government to support themselves. Most applications also require a medical exam and a biometrics appointment. At the biometrics appointment you will typically be required to submit to fingerprinting, having your photo taken and providing your signature.
A green card holder has the right to live and work in the U.S., to apply for a Social Security Card and a state issued driver’s license. A green card holder can also leave the country for up to one year and return (so long as the U.S. remains his or her primary residence), and can even petition for close family members to receive green cards as well.
What a green card holder cannot do, however, is several things: First, a green card holder is not permitted unlimited travel in and out of the United States, and he or she cannot remain outside the U.S. for an unlimited amount of time or keep a primary home in another country. If the green card holder does any of the above and the government learns of it, his or her U.S. residence may be deemed abandoned and, thus, the green card may be cancelled. This means that when he or she attempts to re-enter the U.S. they will be denied access. A green card holder is also without a right to vote in U.S. elections, and is at risk of losing their residency rights by committing crimes and failing to advise U.S. Citizenship and Immigration Services (USCIS) of changes in their address. Finally, green card holders must usually (not always) wait five years before they can begin receiving assistance and benefits from the government.
Applying for a Green Card while in the United States is known as “adjustment of status”, while doing so while outside the United States (or while ineligible while in the U.S.) is known as “consular processing”.
"Concurrent filing" is generally when the immigrant petition (seeking a Visa) is filed at the same time you file your application to get a green card. If an immigrant petition (for a Visa) is filed by someone under 21 years of age, but they become 21 or older while the petition is pending the Child Status Protection Act (CSPA) allows that individual to still be eligible for a green card through his or her parents.
Working Prior to Obtaining a Green Card
One thing you absolutely need to know about green cards is that the processing time varies based upon your preference level (the basis for your application for a green card). Every year there are only a limited amount of employment and family-based green cards that are issued. Because there are usually more petitions than greed cards available there are certain preference levels that will require more than a short waiting period before the green card is actually issued. *The extreme example given in this regard is an F4 green card for residents of the Philippines, which is 24 years. Although that type of wait time is not at all common, you should know that there is a still a good chance that you may be waiting for your green card for at least a year. More importantly, unless you take the necessary steps, you will be waiting without the ability to legally work in the U.S. Most people cannot afford to do this and, thankfully, there is a solution in the form an Employment Authorization Document, also known as an EAD or work permit, or various other employment based Visas, the most prevalent and common being the H-1B.
An EAD allows non-citizens to legally work in the United States for a U.S. employer until their green card is issued. An EAD is granted when an individual has a pending Immigration Petition for Permanent Residence or I-485. Some things to note for an EAD is that there is no limit on the number that are issued each year, you can apply at any time, the waiting time is only around 90 days, they are usually issued for only a 2 year period (although they can be renewed) and that to travel in and out of the U.S. with an EAD you must file for a travel document with an I-131 form.
Qualifying for an EAD occurs in one of three ways. Have the authorization to work for a specific employer due to your nonimmigrant status, have employment authorization that will result from your pending nonimmigrant status or fall in a category which permits you to file for employment authorization. These categories, which do not automatically guarantee the issuance of an EAD are a non-immigrant with a family-based status, an employee whose work is related to a diplomatic mission, NATO, or another International Organization, a person who has sought asylum or refuge in the U.S. as well as their dependents and spouse, the spouse of an exchange visitor or an F-1 or M-1 student that falls under certain categories.
Important things to consider with respect to an H-1B Visa is that the Visa is good for 3 to 6 years, applications start from the first day in April, with only 65,000 issued each year (exemptions exist for up to 20,000 individuals with higher degrees from US universities). This typically means that after the first week of April the H-1B Visas are all issued.
To qualify for such you must have specialized knowledge and hold at least a bachelor's degree. You also need an employer to sponsor your visa, can only work for a sponsoring institution in a specialized field, and can only work for that company while that Visa is active. As a result, a major issue arises if you lose your job with that sponsoring employer.
With respect to the H-1B, you and the sponsoring employer should also know that the process includes not just the filing of an application, but of evidence in support of the application, including an LCA (Labor Condition Application), and evidence of the beneficiary's education. An LCA is a document that the employer files with the Department of Labor primarily to show that the prospective employee will be paid wages consistent with others in his or her field. In addition, while the H-1B Petition cannot be filed more than six (6) months prior to the scheduled start date for the employee, an LCA can, and you would be wise to get it started as soon as possible.
Petitioning for Relatives
Children, Sons or Daughters
For immigration purposes, a “child” is defined as being unmarried and under 21, and any of the following: (1) A genetic child born in wedlock. (2) A genetic child born out of wedlock. (3) A child born through Assisted Reproductive Technology to a non-genetic gestational mother that is recognized under the law of the prevailing jurisdiction as the child’s legal parent at the time of birth. (4) A step-child, as long as the relevant marriage occurred before the child turned 18. (5) A child adopted prior to age 16 (exceptions exits), so long as the child resided in the legal and physical custody of the adoptive parent for two years prior to filing (the legal and physical custody do not have to be the same time period, but each must be met for 2 years).
If a person is married and/or over 21, that person is not defined as a child but as a “son” or “daughter”.
If you are a U.S. citizen you may petition for (1) Children, (2) Unmarried sons and daughters, and their children, or (3) Married sons and daughters, and their spouse.
If you are a permanent resident (green card holder) you may petition for (1) Children, and their children, or (2) Unmarried sons and daughters, and their children.
If you were married and/or had children who did not obtain permanent residence at the same time you did they may be allowed what is referred to as "follow-to-join" benefits, which will allow them to apply for an immigrant visa. This typically means less forms and no extra wait time for a visa number to become available. Eligibility for such benefits may exist if the relationship, which must still exist today, existed at the time you became a permanent resident and your immigrant visa or adjusted status was in a preference category.
To petition for your parents (mother or father) to live in the United States as green card holders, you must be a U.S. citizen and at least 21 years old. Green card holders (permanent residents) may not petition to bring parents to live permanently in the United States. If you meet the above-mentioned criteria you may petition for your mother or father who live out of the U.S. This includes step-parents and adoptive parents, but what is required to be provided so that your petition is approved is different depending upon the parent-child relationship. As such, we urge you to contact us to discuss if you are considering this type of petition.
If your parent is currently in the United States he or she may be able to concurrently file (file for permanent residence or to adjust status while petitioning for a visa). It is also interesting to note that an EAD (work permit) is not required if your parent is admitted to the U.S. as an immigrant because they will receive a passport stamp upon arrival that will prove they are allowed to work until their permanent resident card arrives. If your parents are also in the United States, however, they can apply for employment and travel authorization while their case is pending if they have also applied to adjust to permanent resident status.
*As with all petitions, what can be confusing and what is extremely important is knowing what forms and evidence to submit to give your petition the best chance of being granted. Not doing so can cause the petition to be denied.
Brothers and Sisters
You can petition to bring your brother or sister to the United States if you are a green card holder, a U.S. citizen and at least 21 years of age. Permanent residents may not petition to bring siblings to live permanently in the United States. The siblings can be related to you in the typical way, but also through adoption, through a step-parent and even if you have the same father but different mothers. Siblings cannot enter the U.S. on the basis of a pending form I-130.
*As with all petitions, what can be confusing and what is extremely important is knowing what forms and evidence to submit to give your petition the best chance of being granted. Not doing so can cause the petition to be denied.
Husband or Wife
You can petition for a spouse if you are a U.S. citizen or a lawful permanent resident. This includes a widow or widower of a U.S. citizen and the spouse was married to the individual at the time he or she died.
Victims of Abuse
The violence against women act (VAWA), which amends part of the immigration and Nationality Act (INA), permits a battered spouse, child or parent to file an immigrant visa petition under certain circumstances. For the safety and protection of the battered individual, he or she petitions for themselves, and the abuser is not made aware of the filing. Even though VAWA stands for violence against women act, it should be pointed out the whether the petitioner or abuser is male or female is not important, as the act equally applies to both. Finally, even though the act speaks of "violence," it should be noted that the abuse in question need not be physical in nature, as mental abuse also qualifies as abuse under the act.
A spouse can file for him or herself if the abuse is directed at the spouse or the spouse's child, and the spouse's petition may also include unmarried children under 21 years of age, unless they have filed separately. To be eligible as a spouse, you must meet the following five criteria:
(1) Qualify as a "spouse" under the meaning of the law, which means one of the following exist:
The spouse must be currently married to the abuser who is a U.S. citizen or permanent resident
The marriage must have terminated by death or divorce within the 2 years prior to filing
The abuser must have lost or renounced citizenship or permanent resident status within the 2 years prior to filing due to an incident of domestic violence
The abused believed that he or she was married to the abuser but the marriage was not valid for the reason that the abuser committed bigamy
(2) Suffer battery or extreme cruelty by your spouse, which means one of the following exist:
You have been abused by your spouse
Your child has been subjected to battery or extreme cruelty by your spouse.
(3) You must have entered the marriage in good faith
(4) You must have resided with your spouse
(5) You must be a person of good moral character.
A parent may file if the parent is abused by his or her son or daughter, provided the son or daughter is a U.S. citizen. You may not file if the son or daughter, regardless of how abuser they may be, is only a lawful permanent resident. To be eligible as a parent, you must meet the following four criteria:
(1) Qualify as a parent, which means one of the following must exist:
Be the parent of a U.S. citizen that is abusive who is at least 21 years of age when the petition is filed
Be the parent of an abusive child who lost or renounced their citizenship due to an incident of domestic violence
Be the parent of a U.S. citizen that is abusive who was at least 21 years of age, but died within 2 years of filing the petition.
(2) You must have suffered battery or extreme cruelty by your U.S. citizen child
(3) You must have resided with the abusive child
(4) You must be a person of good moral character
A child may file a petition for him or herself if under 21 years of age (see exception below), unmarried and if he or she has been abused by a parent that is a U.S. citizen or permanent resident. *Note: a child can also be included on an abused spouse's petition. The exception to the under 21 rule is when it can be demonstrated that the abuse was the primary reason for the delay in filing. In such a circumstance the child can file if under 25 years of age. To be eligible as a child, you must meet the following four criteria:
(1) Qualify as a parent/child relationship, which means one of the following must exist:
You must be the child of a U.S. citizen or permanent resident abuser
You must be the child of an abuser who was a U.S. citizen or permanent resident, but who lost citizenship or lawful permanent resident status due to an incident of domestic violence
(2) You must have suffered battery or extreme cruelty by your parent who is a U.S. citizen or permanent resident.
(3) You must have resided with your abusive parent.
(4) You must be a person of good moral character. Good moral character is presumed for a child under 14 years of age.
*Special Immigrant Juvenile (SIJ)
In addition to the above, a child who has been abused, abandoned or neglected by his or her parent or parents can apply for special immigrant juvenile status (SIJ). This type of application if very fact specific, and at first glance you may not think it applies to your situation. We urge you to contact us to discuss your particular situation, however, so that we can be review your situation to determine if you or someone you know may qualify as a Special Immigrant Juvenile.
Becoming a U.S. Citizen
Naturalization is when a green card holder becomes a U.S. citizen, and the green card holder must typically wait some years before this occurs (note: if you join the military you do not even need to be a green card holder to become a citizen). Both statuses provide long-term rights to live and work in the U.S., but U.S. citizenship is the highest status someone can attain under U.S. immigration law. It means a permanent right to live in the United States, and that you cannot be deported (unless it is shown that you used fraud in obtaining you citizenship). U.S. citizens can vote, and can petition for a longer list of foreign family members to join them in the U.S. such as parents (as immediate relatives), married children, and brothers and sisters.
Although the above list is extensive, it certainly does not cover every situation and/or every avenue for relief. There are other ways in which one might apply for a Green Card such as through the green card registry, under the Cuban adjustment act, as a person born in the U.S. to a foreign diplomat, or as a religious worker, but they cannot all be listed here. We therefore urge you to contact us with your particular situation, regardless of what it is or whether you think you will qualify or not. We will give you an honest evaluation as to whether you have any options, and will be happy to assist you further if after discussing those options and answering your questions you feel you would like to move forward with a petition or application.
If any of the above are denied, the denial letter will tell you how to appeal and when you must file the appeal. There are strict time limits in this regard, so please do not delay in contacting us to discuss your situation should your petition be denied.