immigration law


Green Card Through Marriage to a U.S. Citizen/Legal Permanent Resident

Both legal permanent residents and U.S. citizens may file petitions for their immigrant spouses to obtain green cards.  However, the U.S. limits the number of petitions that can be filed by legal permanent residents for their spouses and they are also required to wait until a visa becomes available.  In contrast, special consideration is given to spouses of U.S. citizens who are known as “immediate relatives.”  They are spouses, parents and minor children of U.S. citizens.  There is no limit on the number of green cards available for any country for petitions for these relatives and they do not have to wait for a visa; they are immediately available. 

To qualify for a green card through a U.S. citizen spouse or legal permanent resident, you must demonstrate that your marriage is “bona fide,” which means it is a valid marriage, not one entered into for immigration purposes.  You can submit proof of your valid marriage such as the fact that you have a child(ren) together, photos of your wedding and reception, proof that you live together, affidavits from friends and relatives, joint property deeds, and joint income tax returns.  If you have been married for less than 2 years at the time your green card is granted, you will receive conditional residency for 2 years and must file a joint petition with your spouse for a 10 year permanent residency before the 2 years is up.  If, as sometimes does happen, you divorce before the end of the 2 years, you will have to apply for a “good faith marriage waiver” of the joint petition requirement.
To apply for the green card, the U.S. citizen/legal permanent resident spouse files an I-130 petition establishing his/her relationship to the immigrant spouse who can then get a work permit within 90 days.  If the immigrant spouse lives in the U.S. and entered legally, he/she can usually obtain a green card without having to leave the U.S. This process is called “Adjustment of Status.”  However this many not be an option in some cases.  If an immigrant accumulated “Unlawful Presence,” by remaining in the U.S. for a specified time after April 1, 1997 after having entered the U.S. illegally, overstaying a visa or violating the terms of a visa, he/she would have to return to his/her home country to apply for the visa, and as a penalty for Unlawful Presence, wait 3 or 10 years to be officially allowed back into the U.S.  Fortunately, there are exceptions that would allow an immigrant to adjust status in the U.S. or waive the Unlawful Presence 3 or 10 year penalty.  For more information about Adjustment of Status, click here.


Fiancé(e) Visas
In addition to spouses, U.S. citizens may also petition for their immigrant fiancé(e) to come to the U.S. by filing for a K-1 nonimmigrant visa.  The K-1 visa permits the immigrant fiancé(e) to travel to the United States and marry his or her U.S. citizen sponsor within 90 days of arrival. Eligible children of the immigrant fiancé(e) can obtain K-2 visas to come to the U.S. with their parent.  The immigrant fiancé(e)can then apply to adjust status in the U.S. to that of a legal permanent resident. 

To qualify, the immigrant fiancé(e) and U.S. citizen must have met in person within the last 2 years before filing for the visa and must show evidence that they have a real relationship. There may be an exception to the 2 year meeting requirement based on extreme hardship for the U.S. citizen sponsor to personally meet the immigrant fiancé(e), or, for example, if it is not allowed by the U.S. citizen’s or immigrant fiancé(e)’s culture to meet before marriage.  They must also show they were both legally free to marry at the time the petition was filed and have remained so thereafter. The marriage must also be permitted according to laws of the U.S. state in which the marriage will take place.
Green Cards through Other Family (Not Spouse)
U.S. citizens are entitled to petition for a broader range of relatives than legal permanent residents.  They may file relative petitions for spouses, children, adult sons and daughters (whether married or not), parents and brothers and sisters.  Legal permanent residents can only sponsor spouses, parents, children and unmarried adult sons and daughters.

The United States limits the number of relatives a U.S. citizen or legal permanent resident can petition for permanent residency, with the exception of “immediate relatives” of U.S. citizens.  These are spouses, parents and unmarried, minor children of U.S. citizens. 

To apply for the green card, the U.S. citizen/legal permanent resident files an I-130 petition establishing his/her relationship to the immigrant relative.  Once it is processed, the immigrant must wait for a visa for his/her category to become available, UNLESS he/she is an “immediate relative” of a U.S. citizen for whom visas are immediately available.  For some visas, this could take many years.  Once a visa is available, the immigrant can usually obtain a green card without having to leave the U.S. This process is called “Adjustment of Status.”  However this many not be an option in some cases.  If an immigrant accumulated “Unlawful Presence,” by remaining in the U.S. for a specified time after April 1, 1997 after having entered the U.S. illegally, overstaying a visa or violating the terms of a visa, he/she would have to return to his/her home country to apply for the visa, and as a penalty for Unlawful Presence, wait 3 or 10 years to be officially allowed back into the U.S.  Fortunately, there are exceptions that would allow an immigrant to adjust status in the U.S. or waive the Unlawful Presence 3 or 10 year penalty.  For more information about Adjustment of Status, click here.

Unlawful Presence
Unlawful Presence refers to when an immigrant has resided in the U.S. for a specific time after entering it illegally, overstaying a visa or violating the terms of a visa.  In 1996, a U.S. law was passed that bars certain persons who have accumulated a certain period of “unlawful presence” in the U.S. and then left the country from returning to the U.S. to become permanent residents for either a 3 year or 10 year period.  If you have been unlawfully present in the U.S. for over 6 months after April 1, 1997 but less than 1 year and then depart, you are banned from returning for 3 years.  If you have been unlawfully present for 1 year or more after April 1, 1997 and then depart, you are banned from returning for 10 years.  If you now want to obtain a visa/green card, the USCIS will review your record and may determine you are currently inadmissible and must wait 3 or 10 years to be allowed to re-enter the U.S.

Many immigrants who are living in the U.S. may think this is not an issue because they have no intention of leaving the U.S. and the Unlawful Presence law only applies to an immigrant that has left the U.S. and is trying to re-enter.  However, for immigrants that have an immigration petition on file with the USCIS and now want to proceed to obtain legal permanent residency or another immigration benefit, this can be a serious issue.  For example, an immigrant whose U.S. citizen or legal permanent resident family member has filed an I-130 Relative Petition and whose visa is now available must now file the papers to become a permanent resident.  There are 2 ways to do this: Adjustment of Status or Consular Processing.  Adjustment of Status is when an immigrant living in the U.S. wants to obtain his/her legal permanent residency without returning to his/her home country to do so.  An immigrant must be eligible to adjust status. If he/she does not meet the eligibility requirements, he/she must return to his/her home country for Consular Processing to obtain a visa/green card and then re-enter the U.S. This is where Unlawful Presence can affect the immigrant’s ability to obtain a green card.  If he/she has accumulated Unlawful Presence and is required to do Consular Processing, the penalty for Unlawful Presence will make the immigrant inadmissible for 3 or 10 years.

Fortunately, there are a few exceptions that would either allow an immigrant to Adjust Status and petition for a green card in the U.S. or waive the 3 or 10 year penalties for Unlawful Presence if he/she has to do Consular Processing: 

  • I-601A Provisional Waiver.  The law enacting this waiver was passed on January 3, 2013 and became effective March 4, 2013.  It allows the immigrant to Adjust Status and stay in the United States pending the decision on his/her visa/green card if he/she: 1) is at least 17 years old; 2) the I-130 was filed by a U.S. citizen spouse, a U.S. citizen son or daughter age 21 or older, or a U.S. citizen parent (child must usually be under 21 years old); 3) is otherwise admissible into the U.S. (there are no other reasons you would not be allowed to enter the U.S.); 4) can show that a qualifying relative (U.S. citizen spouse or parent) would suffer “extreme hardship” if the alien had to return to his/her home country alone or with his/her qualifying relative pending the decision on his/her visa/green card; and, 5) deserves a favorable exercise of discretion.  Approval of the I-601A results in a "provisional" waiver only.  The official waiver would need to be approved when the immigrant attends a visa interview in his/her home country, and a consular officer makes the final decision that there are no other grounds of inadmissibility. If approved, the immigrant can often return to his/her family in the U.S. with a green card within just a few days or weeks.  Keep in mind the Provisional Waiver is discretionary--approval is not required even if you meet all the requirements.
  • I-601-Unlawful Presence Waiver. This basically forgives the Unlawful Presence and allows you to return to the United States before the 3 or 10 years.  However, it does not allow you to stay in the U.S. and adjust status.  You must apply for the waiver outside the U.S. after your visa interview in your home country and wait there until a decision is made.  To qualify, you must show that you have a qualifying relative (a U.S. citizen or permanent resident parent or spouse) who would experience extreme hardship if you are not granted the waiver and had to return to your home country or if your relative had to relocate with you to your home country.  You are not required to show that you are not otherwise admissible, although this is an important issue you must discuss with your attorney before filing the I-601 Waiver.  Keep in mind, this is a discretionary waiver, which means it is reviewed on a case by case basis and approval is not mandatory even if you meet all the requirements.  
  • Section 245(i) of the I.N.A. (part of the Legal Immigration Family Equity Act) allows certain immigrants with old priority dates to adjust status by paying a $1,000 fine.  The immigrant had to have one of the following filed on or before April 30, 2001 (received by the USCIS or postmarked): an I-130 (Relative Petition), I-140 (Alien Worker), I-360 (Amerasian Widow(er) or Special Immigration), I-526 (Alien Entrepreneur) or an employment application for labor certification filed with the Department of Labor.  The petition had to be approvable when filed, which means it was properly filed, had merit, was not fraudulent and the beneficiary and sponsor had one of the required relationships.  Those who filed petitions after January 14, 1998, must also show they were physically present in the U.S. on December 21, 2000. 
  • Section 245(k) of the I.N.A. provides that if a person is applying for adjustment of status pursuant to an employment-based immigrant visa petition, he/she is eligible to do so as long as he has not been out of status for over 180 days since his most recent admission to the U.S.
  • A person who has filed for asylum can adjust status under I.N.A. § 209(b) after having been physically present in the U.S. for one year after the date he/she was granted asylum status.
  • Under Parole in Place, effective 11/19/13, immediate relatives of U.S. citizens currently or formerly in the U.S. military can apply to adjust status in the U.S.   
  • An immigrant who is an immediate relative of a U.S. citizen who entered the U.S. through the Visa Waiver Program is allowed to adjust status.

Adjustment of Status
Adjustment of Status is an application filed by an immigrant who is physically in the United States and who wants to change his or her non-immigrant status to permanent resident status without having to return to his/her home country to do so.  An immigrant must be eligible to adjust status.  The requirements are:

  • You must be physically in the United States;
  • You must not have entered the United States illegally. Aliens must have been inspected and lawfully admitted into the U.S. The USCIS considers that you have been "inspected" when you present yourself to an immigration officer at a U.S. port of entry. You are considered admitted when an officer informs you of such and you are allowed to enter the U.S. As a rule, your I-94 and/or the Immigration and Naturalization Stamp in your passport is an indication that you have been admitted legally; 
  • You must already be eligible for a green card, such as, by having a U.S. citizen or legal permanent resident family member or a U.S. employer sponsor you;
  • You must have an approved visa petition (if your eligibility is based on a family or employment petition-except immediate relatives since the visa petition can be filed at the same time as the adjustment of status) on file and a current priority date (if any);
  • If you entered the U.S. on a K-1 fiancé(e) visa, you must have married the person who petitioned for you within 90 days;
  • If your eligibility is based on asylum or refugee status, you must have waited one year since either your asylum was granted or you entered the United States as a recognized refugee;
  • You must NOT have entered the U.S. as a foreign national crewman, in transit without a visa ("TWOV"), or under the Visa Waiver Program (VWP) (except immediate relatives of a U.S. citizen);
  • You must (with some exceptions) be in valid visa status at the time of your application to adjust status, including that you have not stayed past the expiration of your permitted stay or worked without permission from the immigration authorities; and,
  • Your situation has not changed. This could affect your eligibility for adjustment of status. 

If, however, an immigrant does not meet the eligibility requirements, he/she would have to return to his/her home country to apply for the visa.  This could be problematic for some, especially those who have accumulated “Unlawful Presence.”  Unlawful Presence is the term for when an immigrant stayed in the U.S. for a specified time after April 1, 1997 after entering the U.S. illegally, overstaying a visa or violating the terms of a visa.  If the immigrant had to return to his/her home country to be able to apply for legal permanent residence, he/she would have to wait 3 or 10 years (which is the penalty for Unlawful Presence) to be officially allowed back into the U.S.  Fortunately, there are a few exceptions that would either allow an immigrant to adjust status and petition for a green card in the U.S or waive the 3 or 10 year penalties if Consular Processing was required.: 

  • I-601A Provisional Waiver.  This relatively new program, which became effective March 4, 2013, requires : 1) the immigrant to be at least 17 years old; 2) the I-130 was filed by a U.S. citizen spouse, a U.S. citizen son or daughter age 21 or older, or a U.S. citizen parent (child must usually be under 21 years old); 3) the immigrant to be otherwise admissible into the U.S.; 4) the immigrant to show that a qualifying relative (U.S. citizen spouse or parent) would suffer “extreme hardship” if the immigrant had to return to his/her home country alone or with his/her qualifying relative pending the decision on his/her visa/green card; and, 5) the immigrant be deserving of a favorable exercise of discretion by immigration authorities. 
    Approval of the I-601A results in a "provisional" waiver only.  The official waiver would need to be approved when the immigrant attends a visa interview in his/her home country, and a consular officer makes the final decision that there are no other grounds of inadmissibility. The benefit of this I-601A Provisional Waiver is that the immigrant can remain in the U.S. pending the decision and will know if it has been denied before deciding to go to his/her home country for the consular interview.   If approved, the immigrant can often return to his/her family in the U.S. with a green card within just a few days or weeks.  Keep in mind this waiver is discretionary and does not have to be approved, even if you meet all the requirements.
  • I-601-Unlawful Presence Waiver. This basically forgives the Unlawful Presence and allows you to return to the United States before the 3 or 10 years.  However, it does not allow you to stay in the U.S. and adjust status.  You must apply for the waiver outside the U.S. after your visa interview in your home country and wait there until a decision is made.  To qualify, you must show that you have a qualifying relative (a U.S. citizen or permanent resident parent or spouse) who would experience extreme hardship if you are not granted the waiver and had to return to your home country or if your relative had to relocate with you to your home country.  You are not required to show that you are not otherwise admissible, although this is an important issue you must discuss with your attorney before filing the I-601 Waiver.  Keep in mind, this is a discretionary waiver, which means it is reviewed on a case by case basis and approval is not mandatory even if you meet all the requirements.  
  • Section 245(k) of the I.N.A. provides that if a person is applying for adjustment of status pursuant to an employment-based immigrant visa petition, he/she is eligible to do so as long as he has not been out of status for over 180 days since his most recent admission to the U.S.
  • A person who has filed for asylum can adjust status under section 209(b) of the I.N.A. after having been physically present in the U.S. for 1 year after being granted asylum status.
  • Under Parole in Place, effective November 19, 2013, immediate relatives of U.S. citizens currently or formerly in the U.S. military can apply to adjust status in the U.S.
  • An immigrant who is an immediate relative of a U.S. citizen who entered the U.S. through the Visa Waiver Program can adjust status.

Grounds for Inadmissibility & Waivers

An immigrant wishing to enter the U.S. must show he/she is not subject to any ground of inadmissibility under I.N.A. section 212(a).  These are reasons why the U.S. would not allow an immigrant to enter or live in the U.S. and include someone that: 1) has a contagious disease; 2) has a mental or physical disorder that would cause them to harm themselves or others; 3) does not have the required vaccines; 4) has convictions for crimes of moral turpitude; 5) has violated immigration laws; 6) has multiple criminal convictions; 7) is a prostitute, drug abuser, trafficker, spy, terrorist, or Nazi; 8) is likely to need government financial assistance;  9) has committed fraud; and, 10) has accumulated unlawful presence.
Some of the common grounds for inadmissibility have to do with violation of immigration laws, such as entering or remaining in the U.S. illegally.  For example, immigrants who are found to have entered the U.S. without proper inspection would be inadmissible under I.N.A § 212(a)(6)(A)(i)].  An immigrant who seeks to enter and remain in the U.S., but does not have the proper documents to show authorization to do so is inadmissible under I.N.A. § 212(a)(7)(A)(i)(I). Another common inadmissibility issue is based on fraud and misrepresentation. I.N.A § 212(a)(6)(C)  An immigrant who tries to get a visa/other documentation, admission to the U.S. or any other benefit under the I.N.A. by fraud or willfully misrepresenting a material fact, is inadmissible for life. 
Many immigrants also experience inadmissibility issues because of Unlawful Presence.  This means they entered the U.S illegally, overstayed their visa or violated the terms of their visa for a specified period of time. If an immigrant is unlawfully present for more than 180 days but less than 1 year, they are inadmissible for 3 years; those who have been unlawfully present for 1 year or more are inadmissible for 10 years. I.N.A. § 212(a)(9)(B).  There is a waiver for this ground of inadmissibility.  It requires that the immigrant apply for it in his/her home country after the consular interview.  To qualify, you must show that you have a qualifying relative (a U.S. citizen or permanent resident parent or spouse) who would experience extreme hardship if you are not granted the waiver and had to return to your home country or if your relative had to relocate with you to your home country.  You are not required to show that you are not otherwise admissible, although this is an important issue you must discuss with your attorney before filing the I-601 Waiver.  Keep in mind, this is a discretionary waiver, which means it is reviewed on a case by case basis and approval is not mandatory even if you meet all the requirements.
Fortunately, many of the other grounds for inadmissibility also have waivers available such as health-related grounds, certain criminal grounds, fraud and misrepresentation (except a false claim to U.S. citizenship), and others. 

 

Employment-based immigrant visas

An immigrant visa allows an immigrant to obtain legal permanent residency (green card) in the U.S. There are 5 categories (preferences) of employment-based immigrant visas, each with its own requirements and annual limits on the number of visas available.  They are:
EB-1 preference category 
This category includes persons of extraordinary ability, outstanding professors and researches, and executives and managers of multinational employers. 
EB-2 preference category 
Those who qualify under this category are persons of exceptional ability and persons whose jobs require an advanced university degree or its equivalent.  In most cases, the employer has to obtain U.S. Department of Labor PERM (permanent) labor certification approval before it can sponsor the employee. 
EB-3 preference category 
Those in this category consist of professionals, skilled workers and unskilled workers. As with EB-2, the employer must usually get the PERM (permanent) labor certification approved by the Department of Labor before it can sponsor the employee.
EB-4 preference category 
This category is for religious workers and other “special immigrants.”
EB-5 preference category 
Those in this category are investors who are able to invest $1 million (in some case, $500,000) in a new U.S. business.

The laws protect U.S. workers by requiring the employer in most of the categories to file an application for labor certification with the Department of Labor that shows there are no U.S. workers able, willing and qualified to fill the position the employer is offering.  An employer can demonstrate this by, for example, advertising the position in local or national newspapers or trade journals and showing that no suitable U.S. workers applied for the job. The employer filing the petition must also be able to show the financial ability to pay the offered wage and that the employee meets the minimum requirements to perform the job satisfactorily.
Once the labor certification is approved, the employer requests to hire you by submitting it to the USCIS. Then you (the employee) files an application to either “adjust” your status, if you are already in the U.S., or obtain an immigrant visa if you are abroad (this is filed with the U.S. Consulate). Once this application is approved, you will become a permanent resident in the U.S. and can start working in the job for which your employer sponsored you. 
EB-5 Investors
This category is for investors and has different requirements than the other categories.   The EB-5 visa is for the Immigrant Investor Program which was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors.  It allows permanent residency for investors who invest $1,000,000 ($500,000 if in a rural area or an area with high unemployment) in a new commercial enterprise that employs 10 full time U.S. citizens or permanent residents who are not family members of the investor. People granted visas for this category are given two-year conditional resident status and can file for the removal of conditional residency and obtain legal permanent residency (a green card) before the second anniversary of being granted the visa.
All EB-5 investors must invest in a new commercial enterprise (a for-profit activity formed to conduct lawful business, such as, a sole proprietorship, partnership, or corporation) established after Nov. 29, 1990, or established on or before Nov. 29, 1990, that is purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or expanded through the investment so that a 40% increase in the net worth or number of employees occurs. 
The commercial enterprise must also create or preserve (can only be credited with preserving jobs if the business is considered a “troubled business”) at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.
Contact us at West L.A. Law, P.C. if you are interested in obtaining an EB-5 visa.  We can review all the necessary requirements with you and prepare your application for the EB-5 visa.
Employment Based Non-immigrant Visas (Temporary Workers)
There are several employment based non-immigrant visas available for temporary workers.  These are not intended to provide an employee with permanent residence in the U.S., however, some may lead to an employee being able to obtain a green card.  Employment-based, nonimmigrant categories include:

  • E-1 (treaty trader) This visa allow nationals of countries having commercial treaties with the United States who are executives, managers, specialists or 50% owners of a treaty nation company operating in the U.S. to engage in trade or business investment activities. Trade includes commercial transactions in goods and trade in services and technology like banking, insurance, transportation, tourism, communications, data processing, advertising, accounting, design and engineering, management consulting, or technology transfer.  An E-1 trader must be a citizen of a treaty country who engages in substantial trade (more than 50% of the total volume of international trade) between the United States and the treaty country.  The E-1 visa allows travel freely in and out of the U.S., is valid for 2 years and can be renewed indefinitely for 2 year periods as long as the E-1 qualifications are met.
  • E-2 visas (treaty investor) An E-2 visa is for an investor from a qualifying treaty country who is starting a new business or purchasing an existing business in the U.S. The investor must show that the investment funds come from a legitimate source, be investing a substantial amount of capital that is committed to the business and must be coming to the U.S. solely to develop and direct the business (either by showing the investor owns at least 50% of it, or that he/she has operational control as an executive or other high-level personnel).  E-2 visas can be granted for up to five years, allow travel freely in and out of the U.S. and can be renewed indefinitely as long as there is a need to manage and direct the business.
  • H-1B Visa - These are non-immigrant visas for professionals in “specialty occupations”-those with college degrees or higher who will work in their field of study, such as, software engineers, teachers, architects, and doctors. There is a quota of 85,000 H-1B visas each year; 65,000 for those with bachelor’s degrees; 20,000 for those with master’s degrees.  The employee must have an employer sponsor them to work in the U.S. and apply for a labor condition application with the Department of Labor.  The employer must be able to pay the prevailing wage for the job and show there are no minimally qualified U.S. workers available.  The H-1B visa is good for 3 years and can be renewed for another 3 years.  An employee may receive extensions of H-1B status beyond six years in certain circumstances, if s/he is applying for an employment-based green card. 
  • H-2B visa allows for entry of certain short-term, temporary workers.
  • J-1 visa is for exchange visitors.
  • O visa is for persons of extraordinary ability in the arts, sciences, education, business, or athletics.
  • P-1, P-2, and P-3 visas are for certain types of performers and athletes.
  • TN visa is for professionals offered employment in specific occupations listed in the North American Free Trade Agreement (NAFTA) who are citizens of Canada and Mexico and want to work in the United States. There is no numerical limit or cap on the number of TN visas that may be issued.

Employment Authorization Document (Work Permit)
All employees in the United States are required to show their employers proof of their eligibility to work in the U.S.  An Employment Authorization Document (EAD) also known as a “work permit,” is a card issued by the United States Citizenship and Immigration Services (USCIS) for immigrant workers that proves that the holder is authorized to work in the United States. An EAD is usually valid for one year and is renewable.
Only certain immigrant workers, however, can obtain an EAD, such as fiancé(e)s and spouses of U.S. citizens, asylees and those applying for asylum, TPS immigrants, refugees, certain students applying for particular jobs, and immigrants in the U.S. at the final stage of obtaining permanent residence.  Once you have obtained legal permanent residence, you do not need an EAD; a green card is proof of a person’s eligibility to work in the U.S.
Citizenship
Many people have been living in the U.S. for a long time without becoming citizens even though they qualify.  Maybe they think it is sufficient with being a legal permanent resident.  But, it is wise to keep in mind that the laws are constantly changing and they may at any time limit the currently existing rights enjoyed by lawful permanent residents.  And, the fact is they actually do not have the same rights as citizens and have more legal restrictions imposed upon them.   For example, a legal permanent resident cannot sponsor a brother or sister or a son or daughter that is married.  They also are required to maintain a certain period of continuous physical residency in the U.S. or risk losing their immigration status.   To become a U.S. citizen, you must:
•   Be at least 18 years old;
•   Be a U.S. permanent resident for the last 5 years before filing (or 3 years if you obtained your
residency through your U.S. citizen spouse and still reside with him/her);
•   Currently live in and have resided in the U.S. for at least 30 months during the last 5 or 3 years;
•   Be a person of Good Moral Character;
•   Have lived in the district where you want to apply for citizenship for at least 3 months before the
date you file your petition.
•   Know basic English and have a basic knowledge of U.S. history. There are a few exceptions for
persons who are more than 50 years old and have resided in the U.S. for long periods of time and
for persons with disabilities if such disability(ies) affect their ability to meet this requirement.

West L.A. Law, Inc., is ready to help you obtain your citizenship, so call us for a consultation.

DACA-Deferred Action for Childhood Arrivals
On June 15 2012, the President announced that certain young illegal immigrants would be eligible for Deferred Action for Childhood Arrivals (“DACA”), which grants temporary relief from deportation and allows them to obtain a work permit.  To qualify for DACA:

  • You must have come to the U.S. before your 16th birthday;
  • You must have continually resided in the U.S. for at least 5 years immediately before June 15, 2012 and must have been present in the U.S. on that date;
  • You must have entered the U.S. without inspection before June 15, 2012, or your lawful immigration status must have expired as of June 15, 2012;
  • You must currently be in school, have graduated from high school, obtained a general education (GED) certificate, or be an honorably discharged veteran of the U.S. Coast Guard or Armed Forces;
  • You cannot have been convicted of a felony offense, significant misdemeanor offense, or 3 or more other misdemeanor offenses, or otherwise pose a threat to national security or public safety; and,
  • You must be under the age of 31 on June 15, 2012. 

    Your DACA status is good for 2 years and can be renewed if you have maintained your eligibility according to the initial DACA requirements and these additional guidelines:
  • Did not depart the United States on or after Aug. 15, 2012, without advance parole;
  • Have continuously resided in the U.S. since you submitted your most recent DACA request that was approved; and,
  • Have not been convicted of a felony, a significant misdemeanor or 3 or more misdemeanors, and do not otherwise
    pose a threat to national security or public safety.

 

You must submit your renewal applications at least 120 day (no more than 150 days preferably) before your current DACA status is due to expire. 

Freedom of Information Act and Privacy Act (FOIA & PA)
The Freedom of Information Act (FOIA) gives any person the right to obtain access to any federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions.  Immigration records can be accessed through the USCIS and are handled by the National Records Center in Lee’s Summit, MO.  

You may need to do a FOIA request if you have filed papers with USCIS in the past, but do not have copies of them.  If you now want to file a new petition or follow up on an old one, you may need to see what information you provided to the USCIS previously. You can request a record of your entire file from the USCIS. 

FOIA requests must clearly identify the records requested and provide verification of the identity of the person whose records are requested and their authorization to release the records.  The requests can only be mailed to the USCIS and cannot be processed online. The FOIA requires that agencies respond to requests for access to records within 20 working days (which excludes Saturdays, Sundays, and legal holidays). 5 U.S.C. § 552  The time period does not start to run until the request is received by the USCIS.  However, an agency is not required to send out the releasable documents by the last business day; but may send a letter informing the requester of its decision and then send the documents within a reasonable time afterward.  
The USCIS sends an acknowledgment letter to each requester providing information about the processing of his/her request. But, if the request does not provide sufficient or the required information for the USCIS to complete a search for responsive records or if the request is unclear, it will have to request additional information (delaying the process).  Any request for information must be responded to within 30 days or the case will be closed.  In addition, under the FOIA, USCIS may extend the response time for an additional ten business days when:
(1) the USCIS needs to collect responsive records from field offices;
(2) the request involves a "voluminous" amount of records that must be located, compiled, and reviewed; or,
(3) the USCIS needs to consult with another agency or other unit of the Department of Homeland Security that has a substantial interest in the responsive information.
The USCIS may notify the requester of this in writing and offer him/her the opportunity to modify or limit the request, or the requestor can agree to a different timetable for processing the request.
All responses are now put on a CD, unless the requester in his/her initial request, asks that it be printed and sent on paper.  Not all responses necessarily contain all the records requested.  The USCIS is required to comply with federal laws that exclude information from being released.   Some common exemptions are:  1) if the information involves national security, specifically about the nation’s defense or foreign policy; 2) if a statute other than FOIA prohibits disclosure; or, 3) if the information discloses “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” See Freedom of Information Act 5 U.S.C. 552.  The USCIS must conduct a page-by-page review of the requested records and determine if and what portions cannot be released according to the law, then redact and apply the appropriate exemptions.
Contact us at West L.A. Law, P.C. if you need to obtain information from the USCIS.  We can file a FOIA request on your behalf to obtain any necessary records on file with the USCIS or other federal agencies. 



Translations
In many cases, you may need to include certain documents when filing an immigration petition with the USCIS.  If these documents are in another language, the USCIS requires that the documents be translated to English.  For example, if you are a Mexican citizen who was married and divorced in Mexico and are now getting married to a U.S. citizen who is sponsoring you for a green card, you must show that your previous marriage was officially terminated.  Your divorce order, written in Spanish, must be submitted with an English translation.
West L.A. Law, P.C. has staff that can provide translations from Spanish to English for any documents that the USCIS requires translated.