- What Rights Do Aliens Have in Removal Proceedings?
- What Forms of Relief are Available from Removal?
- How Do Children Adopted Oversees Gain US Citizenship?
- What Types of Temporary Work Visas are Available?
- What is the Difference Between F and M Student Visas?
- What Can I Do if My Visa Application is Denied?
- What is Temporary Protected Status?
- What is the Child Status Protection Act?
- What is PERM?
- What Happens if I Overstay My Departure Date?
- What is SEVIS?
- How Can I Become a Permanent Legal Resident?
- Can I Become a U.S. Citizen With a Criminal Record?
- U.S. Naturalization Process
- Student and Exchange Visitors to the U.S.
- Overseas Adoption & U.S. Citizenship
- Eligibility For Naturalization
- Criminal Record & Citizenship
- Naturalization Requirements
- Employment Visas
- EB-1 Extraordinary Ability Visas
- H-1B Specialty Occupation Visas
What Rights Do Aliens Have in Removal Proceedings?
Removal proceedings are instigated by the US government's Department of Homeland Security when an alien has entered or attempted to enter the country illegally or has violated US laws. US courts have held that aliens in these proceedings are afforded due process rights and are entitled to the fundamental fairness protections of the Fifth Amendment of the US Constitution. Below is a summary of these rights. Aliens should not take removal proceedings lightly, given the severity of the consequences. For more information on your legal rights in removal proceedings, contact an experienced immigration lawyer today.
Right to Notice
Once the Department of Homeland Security has decided to seek removal of an alien, a Notice to Appear will be served to the alien. The Notice will explain the charges against the alien and the alien's rights in these proceedings. The Notice also will contain the date, time and location of the first hearing before an immigration judge, which must take place within 10 days of service of the notice. The Notice to Appear must meet certain legal requirements in order to be properly served upon the alien. The Notice can be hand delivered or sent through the mail. The alien is responsible for making sure the US government has his or her current address. Failure to update a changed address is not a valid reason for an alien not to have received the Notice to Appear.
Right to Representation
Among the most important rights of an alien facing deportation is the right to legal representation. Aliens have the right to legal counsel at all stages of removal proceedings. The alien will be provided a list of local attorneys who provide representation at reduced or no fees (pro bono).
However, aliens in removal proceedings do not have the right to appointed counsel. Under US law, the right to appointed counsel is reserved for those facing criminal charges. Removal proceedings, despite the severe consequences of a decision to deport an alien, are considered civil proceedings. This means that the alien must be able to pay for the legal representation, or find an immigration attorney willing to donate his or her time. Aliens who can show they are indigent may be able to make a case for appointed representation, but courts have been split on whether or not they will allow this.
Right to Present Evidence
Aliens are allowed to present evidence in their defense. The evidence must be material and relevant to either the issue of the alien's deportability or the issue of the alien receiving discretionary relief from the court (i.e. another option besides being forcibly removed from the country). The evidence can include testimony during the hearing or the introduction of documents, written interrogatories, depositions or subpoenas. Like all of the alien's rights in removal proceedings, the right to present evidence can be waived. If the alien does not request the right to present evidence or does not present evidence, the right is considered waived.
Right to Cross-Examine
The alien also has the right to cross-examine government witnesses and review the evidence against him or her. This right does not extend to any information that is considered sensitive or confidential information for national security reasons. The alien should assert his or her right to cross-examine immediately after a government witness has testified or the government has introduced a document or written statement.
Right to Appeal
If the immigration judge finds for the government and issues an order for the alien to be deported, the alien has a limited amount of time to appeal the decision to the Bureau of Immigration Appeals (BIA). If the BIA also finds against the alien, the alien has the option of appealing the case again to the appropriate US Circuit Court of Appeals. Finally, if the alien receives a negative decision from the circuit court, the alien can appeal the case to the US Supreme Court.
The majority of aliens fail to retain legal representation for removal proceedings. If an alien is ordered removed from the country, he or she may never be allowed to return to the United States, or at best, may be allowed to return after 5 years. It is vital to seek experienced legal representation for immigration matters. If you or a loved one is facing removal proceedings, contact a knowledgeable immigration attorney in your area today.
What Forms of Relief are Available from Removal?
During removal proceedings, the US government may argue why an alien should not be allowed to enter the country or why the alien should be removed (or deported) from the US. The alien has the right to argue why he or she should be allowed to enter the country, why he or she should not be deported and why he or she is entitled to another form of relief. At the conclusion of the removal hearing, an immigration judge will determine whether the alien should be deported and whether he or she is eligible for a discretionary form of relief (this means a form of relief that the judge has the power to grant or deny). These forms of relief may include:
Cancellation of Removal
In rare cases, an alien may be eligible to have the removal proceedings cancelled. This can occur for legal permanent residents and those in the US on nonimmigrant visas. The eligibility requirements for this form of relief are based on years of residence and physical presence in the US. For legal permanent residents, they must have held this status for at least five years and continuously lived in the US for at least seven years after they were legally admitted to the country. Additionally, legal permanent residents cannot have been convicted for an aggravated felony.
For those without permanent resident status, they must have be continuously present within the US for the last 10 years, and during that time period, exhibited good moral character. This means they may not have committed a deportable offense or other acts showing poor character, like failure to pay child support or alimony. They also must be able to show that deportation would create an exceptional and extremely unusual hardship for themselves and/or their immediate family, which includes spouses, children and parents who must hold legal permanent resident status or US citizenship. This can be a very difficult standard to prove.
Adjustment of Status
Aliens who entered the US with a nonimmigrant status (i.e. a temporary visa) may be able to change their immigration status to that of a legal permanent resident. By adjusting their status, the aliens would be able to avoid removal from the country. This form of relief would be available in instances when an alien overstayed his or her departure date for a nonimmigrant visa or had not received a change or extension of status prior to the departure date. In order to receive an adjustment of status, the alien must be admissible as a legal permanent resident and there must be a visa immediately available at the time the application for permanent residence is made. This most often occurs in cases of family sponsorship, including marriage to a US citizen, and employer-sponsorship.
This is the most common form of relief offered by immigration judges. It requires aliens to leave the country on their own accord and their own expense either prior to the completion of removal proceedings or at completion. Aliens can either return to their home countries or to another country that will accept them. The immigration judge is allowed to determine how long the alien has to depart the US once voluntary departure has been accepted by the alien. Generally, if the alien selects to voluntarily depart prior to the conclusion of the removal proceedings, he or she has 120 days to leave the US. If the alien waits until the removal proceedings have ended, he or she is given 60 days to leave. If an alien fails to depart within the time period specified by the immigration judge, he or she will be subject to fines and a 10 year ineligibility period for other forms of relief from removal.
In some instances, foreign nationals will travel without authorization to a US border seeking entry in the country for asylum protection. Others may have entered the US on another status and seek to change their immigration status to asylee status or have entered the country illegally and seek asylum.
Immigration judges have the ability to grant asylum to those who meet the requirements for the protected status. In order to receive asylee status, the alien must meet the definition of a refugee. Under US law, a refugee is someone who has a credible fear of returning to his or her home country because of past or future persecution based on his or her religion, race, ethnicity or inclusion in a specific social or political group. Aliens may be ineligible to receive asylum if they have been convicted of an aggravated felony, pose a national security threat or previously have been denied asylum by an immigration judge. Aliens who entered the US more than one year ago, whether legally or illegally, and failed to file for asylum during that time period also may be ineligible for asylum.
Not all aliens will be eligible for one of these types of relief. For legal advice tailored to your specific removal questions, speak with an experienced immigration attorney in your area. Removal proceedings are serious matters and should not be taken lightly.
How Do Children Adopted Oversees Gain US Citizenship?
When US citizen parents adopt a child from another country, the child may gain US citizenship through one of three routes: upon entering the US, upon application for a Certificate of Citizenship by the parents, or upon completion of the naturalization process.
Upon Entering the US
Most children adopted through international adoptions become US citizens upon entering the US. Under the Child Citizenship Act of 2000, adopted children may acquire US citizenship automatically when the following conditions are met:
- The child has been adopted by at least one US citizen parent
- The child is under the age of 16 at the time the adoption is finalized
- The adoption is finalized
The majority of countries require US parents to complete an international adoption in the child's current country of residence. This means the parents must meet all of that country's requirements for adoption, which may be different from those required under US law. Once the adoption is completed, the parents may file for a visa for the adopted child to travel to the US. The child becomes a US citizen once a government official allows the child to enter the US at a port of entry.
This process may sound simple, but there are many steps that must be taken before US parents can adopt a child from another country. The process for securing a visa for the adopted child also can be time-consuming. For more information on the international adoption process, contact an immigration attorney experienced in this area of practice.
Upon Filing for a Certificate of Citizenship
In order for the adoption to be considered completed overseas according to US law, both parents must have seen the child prior to adoption. In some cases, a guardian or legal representative may be able to complete the adoption process overseas or take custody of the child and bring him or her to the US. In these cases, the adoption must be completed in the US before the child will be eligible for US citizenship.
Once the adoption is completed, the parents must file for a Certificate of Citizenship with the US Citizenship and Immigration Services (USCIS). The adoption must be completed before the child turns 16 in order for the child to be eligible for citizenship benefits as a child.
Whether the adoption is completed overseas or in the US, the adoption must be completed while the child is less than 16 years old for citizenship purposes. If the child turns 16, the child will have to wait until he or she reaches 18 years old to apply for citizenship. There is an exception in cases where the family adopts the biological sibling of a child under age 16. In these cases, the adoption of the sibling must be completed before the sibling turns 18 years old.
If the adoption was not completed until the child passes the age limitation, the child will need to complete the naturalization process in order to become a US citizen. As with other applicants, adopted children must meet all of the requirements for naturalization before their application will be approved, including residing in the US as a legal permanent resident for at least five years.
If you have questions about adopting a child from another country, gaining US citizenship for a child adopted overseas or other immigration questions, contact an experienced immigration attorney for legal advice.
What Types of Temporary Work Visas are Available?
H visas are broken down into several categories. There are limits on the number of each type of H visa available in any given year. Employers may be required to file for labor certification from the Department of Labor prior to petitioning the US Citizenship and Immigration Services (USCIS) for H visas for temporary workers.
- H-1B visas are available for specialty workers, which are defined as workers in occupations that require some degree of theoretical or practical application of specialized knowledge. Those acquiring H-1B visas must have a bachelor's degree or other advanced education degree.
- H-1C visas are available to foreign nurses who are willing to work in medically underserved areas in the US. Nurses may remain in the country for up to three years.
- H-2A visas are available to temporary or seasonal agricultural workers. Employment is restricted to one year or less or to certain times of year, such as harvesting season.
- H-2B visas are available to nonagricultural temporary workers who perform one-time, seasonal, peak load or intermittent employment. The temporary employment must be full-time to qualify.
- H-3 visas are available to trainees, including those in the field of special education. Trainees may remain up to two years in the US, with the exception of special education trainees, who are restricted to 18 months total training. Medical and academic trainees are not eligible for H-3 visas.
L visas are available for intracompany transferees. To be eligible, the individual must have been employed abroad for at least one year within the last three years, must be entering the US to work at a subsidiary, branch, parent or affiliate of the foreign company employer and must be fulfilling an executive or manager position or a position that requires specialized knowledge. Specialized knowledge may include knowledge of the employer's product, its application in international markets or an advanced understanding of the employer's processes and procedures.
- visas are for those with extraordinary ability in the arts, science, education, business or athletics, or extraordinary achievement in movies or television. To be considered "extraordinary," the individual must have earned national and international praise. Chefs, directors and choreographers may be included in this category. Those who assist one of these individuals may be able to obtain a visa to join them in the US as well as spouses and minor children.
P visas are reserved for athletes and entertainers. Those qualifying for P visas must perform at a level that is internationally recognized and may be individually applying or as part of a group or team. If the entertainer is part of a group, the group generally must have been formed at least one year prior to applying for the visa. As with O visas, those assisting the athlete or entertainer may apply for a P visa to join them, as well as spouses and minor children.
Q visas are available to foreign nationals to come to the US as cultural exchange visitors and receive practical training and employment while sharing their history, culture and traditions with US employees. US employers must file a petition to sponsor a cultural exchange visitor with the USCIS. Individuals can remain in the US initially up to 15 months on a Q visa.
For more information on applying for a temporary worker nonimmigrant visa, contact an experienced immigration attorney today. The application process can be difficult and time-consuming. A knowledgeable attorney can explain the requirements to you and help you complete the process correctly.
What is the Difference Between F and M Student Visas?
F student visas are reserved for international students who wish to attend an academic institution to pursue a bachelor's degree, a master's degree, a doctorate or a professional degree. They also may be able to attend accredited junior and community colleges that offer associate degrees in liberal arts. Lastly, F visas may be obtained by international students seeking to attend language training programs or by students wishing to enroll in seminaries and conservatories.
M student visas are reserved for students seeking to apply to vocational or technical programs, typically at a junior or community college or a trade school. Some examples of these types of programs include: dental or physician assistants, optometry, massage therapy, interior design, graphic design, culinary arts, aviation, construction and criminal justice.
All international students wishing to enroll in a US educational program must meet the following requirements:
- The student must be enrolled in a full-time program
- The program must be approved by the US Citizenship and Immigration Services
- The student must be proficient in English, or enrolling in a program to gain the necessary proficiency
- The student must have a passport issued by his or her home country that will be valid for a period of six months after the end of their intended period of study in the US
Students also must be able to show they have sufficient funding to pay for their education. Those applying for F visas need only to be able to provide evidence that they have actual funding to cover the first year of study. However, those applying for M visas must be able to provide evidence of actual funding to cover expenses for the entire course of study, which may be 1-3 years. Expenses include not only the cost of the academic or vocational program, but the costs of living as well, including housing, food and transportation.
Applicants for F and M student visas will have to provide evidence of this funding during their in-person interview with an officer at the US embassy or consulate in their home countries. Those who travel to the US with one of these student visas will have to provide this evidence for inspection again to an official at the US port of entry prior to be allowed to enter the country.
Students with F visas may remain in the United States for the entire time that they remain full-time students with current enrollment. Students with M visas are only permitted to remain in the US for one year initially, with the option of applying for an extension of status up to three years. Once the program is completed, the student must return to his or her home country. Generally, students with F visas have 60 days to depart the US while students with M visas are provided 30 days to depart. Failing to leave the US by the departure date will result in a student being out of status. Aliens out of status may be subject to fines, removal proceedings and other penalties.
To learn more about applying for a student visa or for more information about other immigration legal issues, speak with an experienced immigration lawyer in your area.
What Can I Do if My Visa Application is Denied?
Unfortunately, there is limited review of a consular's decision to deny a visa application. US law provides consular officers with the final authority to issue or deny immigrant and nonimmigrant visas. If the visa application is denied because the applicant failed to provide proper documentation, the applicant should reapply once he or she has gathered the missing documentary evidence.
The applicant may request that the head of the consulate or embassy where the denial occurred review the decision. In some situations, applicants can appeal the denial to the Visa Office of the US Department of State. The State Department's review is limited to cases where the basis for the denial was the consulate's interpretation of the law. The State Department will not review the consulate's interpretation of facts. US courts generally have found that there is no judicial review of visa application denials.
If a consulate decides to deny a visa application, the officer will provide the applicant with a written notice of the denial. The written notice most commonly is a standardized form with the appropriate reason for denial checked off from a list. The list usually provides a reference to the appropriate section of the Immigration and Nationality Act (INA) that serves as the reason for the denial.
If the reason for the denial was substantive, rather than the applicant failing to provide certain documentation, the consular officer will meet in person with the applicant and explain the reason for the denial. In some situations, the applicant's ineligibility may be waivable under US law. To learn more about the available waivers, an applicant should contact an immigration attorney.
The 214(b) denial is one of the most common denials received by applicants for nonimmigrant visas. It refers to Section 214(b) of the INA, which provides that "every alien...shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status..."
Thus, applicants for nonimmigrant visas have the burden to prove to consular officers that they are eligible to receive the nonimmigrant visa for which they applied. Applicants also must be able to prove that they have sufficiently strong ties to their home countries compelling them to return home once their permitted time in the US ends. This most often includes keeping a permanent residence in the home country, but may also include employment, family-owned business or other family ties.
If the applicant is unable to convince the consular officer of his or her intention to return home or his or her eligibility for the particular type of nonimmigrant visa, the consular officer will deny the application. The applicant may be able to reapply for the visa once he or she can provide the necessary documentation, or once his or her circumstances have changed.
For knowledgeable advice on your options following a denial of an immigrant or nonimmigrant visa application, contact an experienced immigration lawyer.
What is Temporary Protected Status?
Temporary protected status is for those foreign nationals who are already in the US on nonimmigrant visas, but who are unable to return to their home countries for a temporary period of time due to war or other conflict, an environmental disaster or some other extraordinary circumstances that are temporary in nature.
The Secretary of the Department of Homeland Security has the authority to create and extend temporary protected status to foreign nationals. Currently, residents of the following countries are eligible to receive temporary protected status:
- El Salvador
Temporary protected status is not automatically awarded to all residents from one of these countries. To be eligible, a foreign national must apply for the status with the US Citizenship and Immigration Services (USCIS), which administers the program from the Department of Homeland Security. Certain preconditions exist, including:
- The foreign national must meet continuous and physical presence requirements in the US
- The foreign national must pass the criminal and security background checks (foreign nationals who have been convicted of any felony or two or more misdemeanors in the US are ineligible for status)
- The foreign national must apply for the status in a timely fashion
Foreign nationals with temporary protected status may work while they are in the US. However, those with temporary protected status are not allowed to use the status as a basis to become legal permanent residents.
In some instances, the Department of Homeland Security will determine that it is necessary to extend temporary protected status to residents from certain countries, given that the reasons for originally granting the status are still present (such as on-going conflict). If temporary protected status is extended, foreign nationals who already have been granted protection are required to reapply for status. If they fail to reapply, they lose the status.
Once temporary protected status has expired, foreign nationals revert back to the immigration status they had prior to receiving the protected status and are required to leave the US by their departure date. As with others residing temporarily in the US on nonimmigrant visas, those who enjoyed temporary protected status can apply for a change in status or extension of their stay with the USCIS.
For more information on temporary protected status or other immigration issues, contact an experienced immigration attorney in your area.
What is the Child Status Protection Act?
Under US immigration laws, minor children of US citizens and permanent residents receive certain benefits not available to married and adult children. To qualify for these benefits, the children must be under 21 years of age and may not be married. One of the problems that developed in determining minor child eligibility was how to handle situations in which the child turned 21 and lost his or her minor status between the time the petition was filed and the time it took to process it. The Child Status Protection Act (CSPA) attempts to offer a solution for this situation.
Under the CSPA, the age of children of US citizens seeking immigrant visas is computed on the date the petition was filed with the USCIS. The purpose of the Act was to ensure visa applicants were not punished because of the delays in processing immigrant visa petitions. For example, if the parent submitted the petition while the child was 20 years old, but the child then turned 21 before the USCIS has approved the petition, the child's status would be adjusted to that of a minor child once the USCIS approves the petition. Thus, the child would not lose his or her minor status for the purposes of immigration.
The CSPA also addresses issues of legal permanent resident parents who become naturalized citizens after petitioning for minor children to join them in the US. In these cases, if the parent petitions for the child before he or she turns 21 and then the parent becomes a naturalized US citizen, the child will receive priority status as an immediate relative - even if the child has since turned 21. Under US immigration laws, spouses and minor children of US citizens receive priority for family-based immigration visas. This means a naturalized US citizen's minor children do not have to wait for a visa number to become available. Rather, once the parent's petition is approved, the child will be able to apply for an immigrant visa.
Other provisions of the CSPA discuss:
- The determination of minor child status for refugee and asylee petitioners
- The determination of minor child status for legal permanent resident petitioners
- The determination of minor child status for Diversity Visa Lottery petitioners
- The treatment of married minor children of US citizens who subsequently divorce
The CSPA only applies to children of US citizens and legal permanent residents and children filing for derivative status based on family-based or employment-based immigration visas filed by a parent. The CSPA does not apply to nonimmigrant visas, including V visas (for spouses and children of permanent legal residents to travel to the US and remain in the country while their immigrant visas are processed) and K visas (for the children of fiancé(e)'s of US citizens).
To learn more about the Child Status Protection Act and whether you are entitled to any benefits under it, contact a knowledgeable immigration attorney in your area.
What is PERM?
In order for US employers to hire certain foreign nationals and sponsor their immigration to the US, they must receive labor certification from the US Department of Labor (DOL). Among other things, the labor certification process ensures that US employers are not displacing US workers by hiring foreign employees, are not creating positions specifically tailored to a foreign employee's skill set and are offering competitive wages to foreign employees. In March 2005, the DOL created a new system that was meant to simplify the process for employers seeking labor certification for foreign employees, known as PERM.
Under the new process, employers only have to file one form (ETA Form 9089) electronically in order to apply for labor certification for full-time, permanent foreign employees. As part of the PERM process, employers are required to meet certain requirements prior to filing their labor certification application, including:
- Requesting a prevailing wage determination from the appropriate State Workforce Agency (SWA) or other approved agency in the jurisdiction of the proposed employment
- Completing a detailed recruitment report that provides information about the steps the employer took to recruit US workers for the position (under federal regulations, employers are required to take specific measures to recruit American workers for the open positions, dependent on the type of job)
Once employers have the prevailing wage determination and the recruitment report, they can submit the Application for Permanent Employment Certification (ETA Form 9089) through the Department of Labor's Web site.
As part of the PERM process, employers must be able to meet a number of requirements in order to receive labor certification. For example, the position must be for a full-time, permanent position. The employer must pay the prevailing wage to the foreign employee as would be offered to an American employee with the same job responsibilities. Through the recruitment report, the employer must be able to prove that there are no willing, able, qualified and available American workers to fill the position. Also, the employer must be able to show that by hiring a foreign worker, similarly-situated American workers will not be displaced or their wages or working environment adversely affected.
If an employer receives certification from the DOL, the employer next must file an Immigrant Petition for an Alien Worker (Form I-140) with the US Citizenship and Immigration Services (USCIS). If the petition is approved, then the US Department of State will assign an immigrant visa number to the foreign employee. At that time, the foreign employee also may apply for immigrant visas for his or her spouse and any unmarried, minor children to join the employee in the US.
The process for sponsoring foreign employees for permanent residence can be complicated and time-consuming. For more information on the PERM process, hiring foreign workers or other immigration matters, contact a skilled immigration attorney in your area.
What Happens if I Overstay My Departure Date?
When an individual enters the US with a nonimmigrant visa or as part of the Visa Waiver Program, he or she is provided with an Arrival-Departure Record, more commonly referred to as the I-94 card. An official from the US Department of Homeland Security will stamp the departure date on the I-94 card. This is the date by which the individual must leave the US in order to comply with US immigration laws.
In some instances, the US official will stamp D/S rather than an actual departure date. D/S means the individual is authorized to remain in the US for the duration of status. This usually applies to foreign students, temporary workers and exchange visitors. Depending on the type of nonimmigrant visa, individuals are provided a limited amount of time to depart the country once their duration of status expires. For example, academic students are given 60 days to leave the US once their studies are completed.
The visa expiration date and the I-94 departure date are two different things. A visa allows an individual to travel to the US and seek admission at a port of entry. Visas may only be valid for a certain period of time. If the individual does not use the visa to travel to the US before the expiration date, then the visa is no longer valid and the individual must apply for a new one. The I-94 card is given once the individual is permitted to enter the US and states the amount of time the individual is authorized to remain in the country.
If an individual fails to leave the US by the departure date, he or she falls out of status. This means he or she is no longer legally in the US and may be subject to certain penalties, including being forcibly returned to his or her home country (deportation), accessed fines and precluded from future immigration benefits. Additionally, overstaying the departure date automatically invalidates the individual's visa. Those in the Visa Waiver Program who fail to leave by their departure date may never be able to participate in the program again, and also may have difficulty securing a US visa in the future.
In order to avoid falling out of status, it is imperative that individuals leave by their departure date. The US Citizenship and Immigration Services (USCIS) will make limited exceptions for those who fail to leave by their departure date due to unforeseen circumstances out of their control. However, these exceptions are rare. If an individual accidently overstays the departure date, he or she should leave the country as soon as possible to minimize any negative consequences.
For those desiring to stay in the US longer or those eligible to change to a different nonimmigrant or immigrant classification, they should submit the appropriate paperwork to extend their stay or change their status well in advance of their departure date. Both of these applications should be submitted to the USCIS. To be eligible for either, the individual must have remained in good status during their stay in the US, which includes not overstaying his or her departure date.
What is SEVIS?
SEVIS is the internet-based Student and Exchange Visitor Information System. It is part of the Department of Homeland Security's Student and Exchange Visitor Program (SEVP) and is used to gather information about foreign nationals and their dependents entering the US on student and exchange visitor visas.
When foreign nationals traveling with F, M or J visas reach a port of entry, they are required to show proof that they are traveling to the institution that sponsored their visa, whether a university, junior college, vocational school or other. For example, they may present the plane ticket for their connecting flight or evidence of other travel plans.
The foreign nationals also must have in their possession the I-20A-B or M-N form, which they would have received upon acceptance to their sponsoring institution. An officer from the Department of Homeland Security (DHS) will inspect these documents upon arrival in the US and also may request:
- Proof of the student's ability to financially support him or herself during the course of study
- Receipts from the most recent tuition payment to the institution
- Transcripts showing requisite education for the intended program
- Evidence that the student intends to return home after the course of study or other program is complete
Student Visa Holders
The DHS also recommends that students carry the name and contact information for the designated official at the educational institution, in case questions arise about the student's status.
Once a foreign student is admitted into the US by a DHS officer, the school is notified that the student has entered the country. If the student fails to enroll in classes within 30 days of his or her entry date, the school is required to notify DHS. The school also must notify DHS if the student moves, changes address, changes names or changes course of study. The school also is required by law to notify the DHS if it punishes the student because the student was convicted of a crime. All of this information then is stored in SEVIS.
Currently, SEVIS stores information on more than 1 million current students and over 5.6 million student and exchange visitors total. Prior to SEVIS, the US government did not have a coordinated program to determine whether those entering the US on these types of visas ever made it to their end destinations, creating a serious gap in security.
If you have questions about applying for a student or exchange visitor visa or concerning other immigration issues, contact an experienced lawyer in your area today.
How Can I Become a Permanent Legal Resident?
There are limited ways for a foreign national to become a permanent legal resident in the United States. US legal residents are not US citizens, but they enjoy many of the same rights and freedoms, including the right to live and work in the US.
One of the most common ways to attain permanent legal residence is through a family relationship. US citizens and legal permanent residents may sponsor certain family members for immigration. US citizens may sponsor their spouses, children (whether married or unmarried), parents and siblings. Legal permanent residents may sponsor their spouses and unmarried children. In order to sponsor one of these persons, the US citizen or legal permanent resident must be able to show they have the resources to financially support the family member. Also, the family member must be eligible for immigration in accordance with US laws. There is a preference system which determines which family members will be eligible first to immigrate. Spouses and unmarried children under 21 of US citizens are exempt from the preference system, and receive visa numbers as soon as their petitions are approved by the USCIS. Other family members may have to wait a significant period of time before they can enter the US.
US employers also may sponsor foreign nationals for permanent residence in the US. The employers must offer the foreign national a full-time, permanent position. Employers will have to receive labor certification from the US Department of Labor prior to petitioning the USCIS for the foreign employee. The labor certification is meant to ensure that the position is bona fide, that the employer used sufficient methods to market the position to US workers and that the working environment and wages of US workers similarly employed will not be harmed by hiring foreign workers, among other things. Once the labor certification is received, the employer must submit a petition to the USCIS requesting the foreign worker be issued a visa. If the petition is approved, the worker may apply for the appropriate visa with the local US embassy or consulate in his or her home country. If the worker is already in the US on a valid visa, he or she may apply for a change in status with the USCIS.
Each year, the US government holds a diversity visa lottery where 55,000 visas are allocated randomly among entrants in the lottery. Only foreign nationals from countries with historically low immigration rates (defined as sending 50,000 or less immigrants to the US in the last five years) are eligible. Entrants also must meet minimum education or work experience requirements to be eligible for the lottery. Those who are eligible may apply for the lottery on-line through the US State Department Web site.
Lastly, foreign nationals who have been granted refugee or asylum status may apply for permanent residence. Refugees are required by US law to apply for legal permanent residence after living in the US for one year after receiving status. Asylees, on the other hand, are not required to apply, but may do so after living in the US for one year after being admitted for asylum protection.
There are limited opportunities to gain legal permanent resident status in the US. For more information on the application procedure, helping a family member immigrate to the US or sponsoring foreign employees for legal residence, contact a knowledgeable immigration attorney in your area.