Immigration

If you are seeking to enter the United States legally for work, are interested in obtaining legal permanent residence or are facing deportation we can help. At The Wright Firm, L.L.P. we handle an entire spectrum of immigration legal issues. We work to provide effective immigration legal services for our clients.

Permanent Residence Generally

A permanent resident is a foreign national who has been granted authorization to live and work in the United States on a permanent basis. As proof of that status, a person is granted a permanent resident card, commonly called a "green card." Foreign nationals can obtain permanent residence through sponsorship by an immediate family member who is already living in the United States, or by an employer.

The first step in the permanent resident process is for a family member or sponsoring employer to file an immigrant petition with the United States Citizenship and Immigration Service (USCIS) on behalf of the foreign individual. Unless the individual is an “immediate relative,” an immigrant visa number must be available. The Department of State must determine if an immigrant visa number is immediately available to an individual, even if the individual is already in the United States. When an immigrant visa number becomes immediately available, an individual can apply to have one of the immigrant visa numbers assigned to them. A visa number might not be immediately available even if USCIS approves the petition, because the amount of immigrant visa numbers is limited by quotas set in the Immigration and Nationality Act (INA). When an immigrant visa number becomes available, an individual must either apply with USCIS to adjust their current status to permanent resident status or apply with the Department of State for an immigrant visa at the nearest United States consulate before being allowed to come to the United States.

Family Based Immigration

Immediate Relatives are:

• Spouses of United States citizens,
• Children (under the age of 21) of United States citizens, and
• Parents of United States citizens who are over 21

There is no limit to the number of individuals who can immigrate to the United States under the immediate relative category. This means that such a person can immigrate as soon as the USCIS approves their case. For a person living outside the United States who fits within this category, there are three distinct steps. The first step is filing the appropriate petition with the immigration service. Once the petition is approved the Department of State will send the petitioner a set of forms to fill out and return to the Department of State. After the forms are returned to the Department of State, an interview is scheduled for the immigrant family member at the appropriate American Consulate. For people in the United States, the process is usually shorter and is called adjustment of status.

For family-based immigrants who are not immediate relatives, there is a Family Preference System that limits the number of immigrant visas to different foreign nationals. Backlogs in the quotas are common in these situations.

There are four family preferences:

1. First preference - sons and daughters over 21 years old of United States citizens
2. Second preference - unmarried sons and daughters and spouses of permanent residents, divided into two categories:
   • 2A - sons and daughters under 21 years old and spouses
   • 2B - sons and daughters over 21 years old
3. Third preference - married sons and daughters of United States citizens
4. Fourth preference - brothers and sisters of United States citizens

The United States Department of State publishes a monthly Visa Bulletin. The Visa Bulletin lists the availability of immigrant visas during the month of publication, and is intended as a guide for all individuals who would like to know if visas are immediately available for a particular category. If a Category is “Current” (indicated by the letter “C” in the Visa Bulletin) then visas are immediately available for issuance. When visas are not available for a particular category, only individuals with a “priority date” earlier than the one listed on the Visa Bulletin may be issued visas. Individuals whose priority date is after the one listed in the Visa Bulletin must wait until their priority date is included in the monthly Visa Bulletin. Priority dates do not necessarily advance from month to month and often times the “current” priority date may actually go backwards from one month to the next. The State Department keeps track on whether there are visas available within the category and per-country limits. Because there is a quota on the number of immigrant visas that may be issued per year, the inevitable result is backlogs.

Adjustment of Status

Once an immigrant visa petition has been approved the individual may apply for Adjustment of Status. Adjustment of status is submitted to USCIS via form I-485. USCIS conducts a series of background checks and makes a decision on the application. If the application is approved, the individual becomes a Legal Permanent Resident.

Advance Parole

Most individuals who have pending applications for adjustment of status are eligible to obtain an advance parole document. The advance parole document allows an individual to leave the United States without abandoning the pending application and to return to the United States after traveling abroad.

Employment Authorization Document (EAD)

Individuals who have pending applications for adjustment of status are eligible to obtain an Employment Authorization Document. An EAD card will allow an individual to lawfully work in the United States while their case is pending.

Consular Processing

This is an alternative to adjustment of status, but still requires the immigrant visa petition to be completed. If the applicant is outside of the United States or selects this option instead of adjustment of status, he/she may make an appointment at the United States consulate in their home country, where a consular officer will adjudicate their case.

Employment Based Immigration

Immigrants who have the opportunity to come to work in the United States often have the opportunity to adjust their temporary status to that of legal permanent resident status. There are four categories for granting permanent residence to foreign nationals based upon employment:

EB-1 Priority Workers

The first preference category requires no labor certification as a condition of visa issuance. In other words, persons falling under the first preference category are not required to establish that there are no qualified U.S. workers available for the proposed position. EB-1 priority workers include:

• Foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics;
• Foreign nationals that are outstanding professors or researchers;
• Foreign nationals that are managers and executives subject to international transfer to the United States.

EB-2 Professionals with advanced degrees or persons with exceptional ability

Under this category, the foreign worker must have a job offer and obtain a labor certification for the proposed position. However, it is possible to avoid the requirement of a labor certification or job offer in certain cases. EB-2 professionals include:

• Foreign nationals of exceptional ability in the sciences, arts or business;
• Foreign nationals that are advanced degree professionals;
• Qualified alien physicians who will practice medicine in an area of the U.S. which is underserved.

EB-3 Skilled or professional workers

Third preference workers must have a job offer and obtain a labor certification. EB-3 workers include:

• Foreign national professionals with bachelor's degrees (not qualifying for a higher preference category);
• Foreign national skilled workers (minimum two years training and experience);
• Foreign national unskilled workers.

EB-4 Special Immigrants

Immigrants under this category include:

• Foreign national religious workers;
• Employees and former employees of the U.S. Government abroad.

The First Step in a majority of employment based cases is to file a Labor Certification Application. The immigrant’s employer must file this application which will describe the responsibilities of the job and qualifications needed by the employer. The employer must prove two conditions before a labor certification will be granted:

• There are no U.S. workers in the area where the job exists, who are available, willing, and able to fill the position; and
• The individual’s employment will not “adversely affect” the wages and working conditions of similarly situated U.S. workers.

The Second Step is filing an Immigrant Petition (Form I-140) with USCIS. While the labor certification application assures the United States government that there are no qualified U.S. workers in the area of the job, the immigrant petition is the request by the employer to hire a specific non-U.S. citizen for the job. After the immigrant petition is approved, the employee can apply for adjustment of status as permanent resident.

Temporary Work Visas

Non-immigrant visas are issued to foreign nationals coming to the United States to work temporarily. We also handle non-immigrant categories, both at the inception and for extensions. Temporary visas include:

• B-1 & B-2: visitors for pleasure and for business
• E-1 & E-2: treaty investors and treaty traders
• F-1: students
• H-1B: professionals, performing a specialty occupation
• J & Q: exchange visitors
• K: fiancées
• L: intercompany transferees
• O: aliens of extraordinary ability in the arts, sciences or business
• P: performing entertainers and athletes
• R: religious workers
• TN-1: NAFTA and/or U.S./Canada Free Trade Agreement
• TN-2: NAFTA and/or U.S./Canada Free Trade Agreement

Citizenship

There are many ways to become a United States citizen. One way is through naturalization. Generally, a lawful permanent resident can qualify to apply for United States citizenship if he or she has been a permanent resident for the required period of time, has been physically present in the United States for at least half of that period, has good moral character, can pass a test on U.S. civics, and can read, write, speak and understand English.

Contact The Wright Firm, L.L.P.

For a confidential consultation with an Immigration Attorney, contact us or call us at 1-877-353-4600 to set up an appointment.

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