October 1, 2007
To learn more about Lathrop GPM, click here ›
Immigration Law Update: Fall 2007
WHY BECOME A U.S. CITIZEN?
Green card holders in this country receive most of the rights of U.S. citizens, and in the day-to-day life of permanent residents there are not too many differences than with their citizen counterparts. So, why bother with obtaining citizenship? Here are 10 reasons that stand out:
If you are planning to become a citizen, you need to file a naturalization application with U.S. Citizenship and Immigration Services. A booklet outlining the naturalization process can be found at www.uscis.gov/files/article/M-476.pdf.
The H-2A visa is a nonimmigrant visa allowing foreign nationals to enter the United States to perform temporary or seasonal agricultural labor or services. Employers must satisfy two criteria to hire H-2A workers:
To start the H-2A application process, the employer must first file two copies of form ETA-750. One copy is sent to the appropriate U.S. Department of Labor National Processing Center, and the other is sent to the state workforce agency (SWA) for the state in which the employment will take place. The application must show how the employer can meet the following conditions:
If the application is accepted for consideration, the National Processing Center will then notify the employer in writing to begin recruitment efforts, which include:
Following the recruitment period, a decision is made regarding certification. The SWA subtracts the number of U.S. workers successfully referred from the total number of workers requested by the employer to calculate and certify the remaining job openings. Once the application is certified by the U.S. Department of Labor, the employer can then apply to U.S. Citizenship and Immigration Services on Form I-129.
Once issued, H-2A visas are valid for a maximum of one year. It may be possible to obtain two one-year extensions. After the alien has spent three years in the U.S. in H-2A status, the alien must leave for six months before continuing H-2A employment. Subsequent to this time, however, the alien can re-enter the U.S. in any status not based on the performance of agricultural work.
GROUNDS FOR J WAIVERS OF THE HOME RESIDENCY REQUIREMENT
Many J-1 Exchange Visitors are subject to the two-year home country residency requirement. This requirement precludes these visitors from changing to many other nonimmigrant visa categories or adjusting to permanent resident status unless they have spent two years in their home country or country of last permanent residence upon completion of their J-1 program.
There are three categories of J-1 visa holders that are subject to the home residency requirement:
Waivers of the home residency requirement are available in a few situations:
Fulfilling the requirement would result in exceptional hardship to a U.S. citizen or permanent resident alien spouse or child.
In order to demonstrate exceptional hardship to a U.S. citizen or permanent resident spouse or child, the J-1 might try and document medical hardship, or persecution of the U.S. citizen or permanent resident if they go to the J-1’s home country, as well as other unusual hardships. Lesser hardships such as spousal separation, separation from children and language problems by themselves are not enough to prove hardship. Rather, the totality of hardship must be measured. A greater degree of hardship must be found in cases involving foreign medical graduates or those receiving U.S. government funding. Also, the hardship must arise both upon a separation of family members and if the family is together in the J-1’s home country.
Fulfilling the requirement will result in persecution to the alien on the basis of race, religion or political opinion.
The criteria for a persecution-based waiver are similar to asylum claims; however, the burden of proof in a persecution-based waiver claim is higher than for an asylum claim. Consequently, most people pursue asylum applications rather than a J-1 waiver based on persecution. Furthermore, asylum claims usually lead to permanent residency status while this is often not true for a J-1 waiver. One instance where a persecution-based waiver may be favored is when an asylum claim is unavailable due to the applicant’s waiting longer than a year after entering to apply.
The alien’s home country government indicates no objection to the alien’s remaining in the U.S.
Waivers may be granted if a J-1 visa holder obtains a “no objection” letter from the exchange visitor’s country of nationality or last permanent residence. The “no objection” letter is a formal statement from the home country to the State Department. Most embassies or consulates in the U.S. have officials designated to handle these statements. Note: A “no objection” letter cannot be the basis for a waiver when the exchange visitor came to the U.S. to receive graduate medical education or training.
An interested government agency recommends the waiver as being in the national interest.
A statement from a U.S. government agency to the State Department that the granting of a waiver would be in the public interest can also be the basis for a waiver. This is usually available if the agency employs the J-1, but an agency may request a waiver even if it does not employ that individual. Physicians may receive waivers through a state's Conrad 30 program wherein each state is able to recommend the waiver for 30 physicians when the physician agrees to practice for three years in one of the state's medically underserved areas.
The spouse and children of a U.S. citizen may be admitted to the United States as K-3 and K-4 nonimmigrants in order to complete their process for legal permanent resident (LPR) status. One of the principal benefits of K-3 and K-4 visas is that immediate families will be unified several months faster than if they were pursuing a typical immediate relative immigrant petition.
To be eligible for a K-3 nonimmigrant visa, the applicant must meet the following requirements:
K-4 nonimmigrants are derivative beneficiaries of the K-3 nonimmigrant. To be eligible for a K-4, the applicant must be:
Separate Form I-130s and 1-129Fs are not required for the K-4 applicant. However, in order to ensure there are no problems during the adjustment of status process, it is recommended that the children’s I-130 be filed with the K-3 applicant’s I-130.
A U.S. citizen attempting to secure a K-3 visa for a spouse and/or a K-4 visa for child(ren) must submit Form I-130 to the USCIS Service Center with jurisdiction over the citizen’s place of residence. Citizens living outside the U.S. must submit Form I-130 to the USCIS Service Center with jurisdiction over the citizen’s last place of residence in the U.S. Once the Service Center has received Form I-130, the citizen will receive a copy of Form I-797, Notice of Action, acknowledging receipt of Form I-130 by the USCIS. Finally, the citizen must file Form I-129F, accompanied by a copy of the I-130 receipt notice, with USCIS at P.O. Box 7218, Chicago, IL 60680-7218.
Obtaining the K visa and traveling to the U.S. does not complete the LPR application process. Upon entering the U.S., each K-3/K-4 nonimmigrant must file Form I-485, Application to Register Permanent Resident or Adjust Status with USCIS. This application can only be submitted after the spouse’s Form I-130 has been approved. If a Form I-130 has not already been completed for each of the K-4 children, the children must file a Form I-130 with their Form I-485.
These visas are no longer valid 30 days after one of the following:
This article is provided for general informational purposes only and should not be construed as legal advice or legal opinion on any specific facts or circumstances. You are urged to consult a lawyer concerning any specific legal questions you may have.
© 2020 LATHROP GPM, ALL RIGHTS RESERVEDCLICK HERE TO UNSUBSCRIBE | POWERED BY FIRMSEEK
The information contained in this document is provided to alert you to legal or tax developments and should not be considered legal or tax advice. It is not intended to and does not create an attorney-client relationship. Specific questions about how this information affects your particular situation should be addressed to one of the individuals listed or to your legal or tax advisor before taking any action based upon this information. No representations or warranties are made with respect to this information, including, without limitation, as to its completeness, timeliness, or accuracy, and Lathrop GPM shall have no obligation to update this information and shall not be liable for any decision made in connection with the information. The choice of a lawyer is an important decision and should not be based solely on advertisements.
If you do not wish to receive any further communication from Lathrop GPM LLP, please send an email to firstname.lastname@example.org with the subject UNSUBSCRIBE.