6. Self-Initiative: The Green Card through Investment (EB-5 Visa); Gaining Status as an Entrepreneur or Especially Talented Individual; Self-Employment
The three ways by which a foreign national may gain (or enhance) U.S. immigration status are through: (1) a family member, (2) an employer, and (3) self-initiative.
Lawful permanent residence is the ultimate status and the portal to U.S. citizenship. There are numerous permutations of the non-immigrant visa by which one can lawfully be in the U.S. on a non-permanent basis. A government effort at removal from the U.S. (ADBCA) can and should be opposed vigorously. After removal or departure it is possible to return lawfully.
There exists a large array of ways for an individual to acquire work authorization (EAD).
2. U.S. Citizenship
U.S. citizenship is the final destination in the immigration law system, although not all permanent residents are “aspiring citizens” (which issue plays a role in the immigration law reform debate).
Normally the portal for citizenship is the maintenance of lawful permanent resident status (the green card) for a specific period of time. Citizenship by naturalization is acquired by application, interview and oath of loyalty. The interview includes exercises in knowledge of civics and English language ability, as well as treatment of any underlying issues of eligibility for which attorney involvement might be advisable.
The two exercises can be waived, depending upon the length of residence and age of the LPR applicant. There is also accommodation for an applicant’s disability.
Some caution is advisable in weighing whether to file a naturalization application. For example, the naturalization application requires the disclosure of all criminal convictions, both in the U.S and abroad, as well as conduct which might have been criminal, but never prosecuted. In revealing a conviction or culpable conduct an applicant could be revealing to the government new information which might subject the applicant to denial of citizenship and possibly removal from the U.S. This aspect of the process is where an immigration law attorney’s assistance may be most critical.
It is equally critical that an applicant for citizenship be absolutely truthful with the attorney throughout the process. A later-revealed substantial misrepresentation could result in the loss of citizenship and other consequences, including removal.
Among the many benefits of citizenship is that no citizen is subject to removal.
Citizenship is conferred through adoption by a U.S. citizen(s), as well as through military service, either by a reduced waiting time as a permanent resident, or without the permanent residency requirement, depending upon the nature of the military service. Citizenship can be granted posthumously to a member of the military.
The U.S. Constitution provides that an individual born in the United States is a U. S. citizen by birth. Birth abroad to a U.S. citizen(s) will also confer citizenship, subject to sometimes convoluted conditions.
It is possible that an individual is in reality already a U.S. citizen without knowing it, typically because of the previously unrevealed U.S. citizenship of a parent or grandparent. Proof of such circumstances is made through a process known as “certification of citizenship”.
By treaty the United States has agreed with numerous countries that an individual may be a dual citizen of both countries. Any individual who is considering applying for U.S. citizenship should first determine the consequences to home country citizenship.
3. The Green Card (Lawful Permanent Residence)
Lawful Permanent Residence status, popularly known as having the “green card” (although the card evidencing LPR status isn’t green) is the most valuable and enduring of the many forms of immigration status. It is, with few exceptions, the portal to U.S. citizenship.
LPR status can originally be issued subject to a condition which must later be removed, as with a spousal petition when the period of the subject marriage was less than two years at the time of filing the spousal petition. The green card associated with the EB-5 investor visa is always granted conditionally, subject to proof after 2 years that the terms of the investment have been honored.
The card must be renewed every ten years, although failure to do so is not fatal to the status. If lost or mutilated, the card can be replaced. Defects in the card can also be remedied.
Lawful permanent resident status is not immutable. It can be taken away, and the green card holder removed from the U.S. through a removal proceeding, especially because of certain serious criminal convictions.
A lawful permanent resident planning to travel or reside abroad must take into consideration at least two immigration law principles: (1) the length of stay abroad could compromise LPR status, and (2) upon customs inspection upon return a criminal conviction could lead to denial of entry and placement in removal proceedings.
4. The Green Card through Family
Please see the Family Law Solutions page.
5. The Green Card through Employer
6. Self-Initiative: The Green Card through Investment (EB-5 Visa); Gaining Status as an Entrepreneur or Especially Talented Individual; Self-Employment
A. The EB-5 investor’s visa is available to an eligible foreign national prepared to invest 1 million dollars in a project in the United States which will create at least 10 full-time jobs. A foreign national who has been classified as an investor by petition may apply for a conditional green card for himself, spouse and minor children. The condition can be removed by petition by subsequent showing of two years of investment compliance.
If the place of investment has been designated as a “targeted employment area” (TEO) because of high unemployment or its rural character, the required investment is $500,ooo. A significant feature of the TEO approach is that the jobs in question can be indirectly inferred by a statistical model, rather than be proven with specificity. The great majority of investments are made through an approved “regional center”.
Two critical elements of the application process are documentation of the investment and the source of investment funds (SOF). A new process utilizing an on-line document library maintained by service centers promises faster processing of applcations.
B. An especially talented individual can self-petition for the green card in the EB-1 “employment-based” category.
C. Treaties between the U.S. and other countries provide for foreign nationals to live in the U.S. , via the E-1 visa (trade with the home country), and E-2 visa (operating a service or sales business in the U.S.). The visa is initially granted for a two year period, subject to on-going renewal. While there is a unofficial requirement of a $50,000 investment, substantially less has been acceptable when it was proportional to the contemplated business.
C. A foreign national in the United States with valid employment authorization may be self-employed.
7. Self-Initiative: Humanitarian Programs
Through self-initiative a foreign national may be able to acquire the green card through a humanitarian program (often with an intermediate non-immigrant visa), such as asylum and related relief, spousal violence (VAWA), as the victim of a violent or predatory crime (U visa), as a victim of human trafficking (T visa), or as a government informant against criminal activity (S visa).
A foreign national juvenile ward of a court may apply for the green card in a special process (SIJS) which, while relatively straightforward, can prove problematic in human terms.
The NACARA green card program remains open to nationals of El Salvador and Guatemala who originally entered the U.S. around 1990 and meet other limited requirements.
A member or veteran of the U.S. military is eligible for the green card by dint of lengthy military service.
An individual present in the U.S. since 1972 , if otherwise eligible, is entitled to the green card through registry.
The “Section 245(i)” provision still holds open the green card process to individuals who entered the U.S. illegally, if they are the beneficiaries of a family or employment petition filed before April 30th 2001. By virtue of grandfathering, both the petition and the beneficiary continue to be afforded this favorable treatment.
The so-called green card diversity lottery remains in effect for the present. Typically the services of an immigration law attorney are not required for the registration process which allocates visas by world regions.
While not leading to the green card, temporary protected status (TPS) permits individuals to register to reside and work lawfully in the U.S. (during the existence of the designation), if they are a national of designated countries undergoing the effects of a natural calamity or civil strife. Designations are subject to ongoing extension.
Designated TPS countries currently are: El Salvador, Haiti, Honduras, Nicaragua, Somalia, Syria, South Sudan, and Sudan (the latter two designation extended for 18 months in September 2014). The Republic of the Philippines is under consideration following recent natural calamities. To be eligible for TPS a citizen of the affected country must be in the U.S when the program goes into effect. A TPS holder may not bring family from abroad. (Apparently many of the children apprehended at the southern U.S. border in 2014 are children of TPS holders from El Salvador, Honduras and Nicaragua.)
The DACA program (Deferred Action for Childhood Arrivals), created by a 2012 executive order, while not creating status, does for a renewable two year period protect recipients from removal, grants a work permit (often leading to a State driver’s license) and a Social Security number. Qualifications include arrival in the U.S. before the 16th birthday, a high school degree, an equivalent or current attendance in a GED, or military service, with certain restrictions based on age, residence and criminal conviction. While individuals have applied for DACA without attorney assistance there are cases in which an immigration law attorney’s assistance could prove essential, especially regarding a criminal record. DACA guidelines have the transcendent provison that every DACA application is subject to a “totality of the circumstances” test which could potentially override specific limitations.
Advance parole, while it does not confer status, does permit an individual to enter and reside temporarily in the U.S. for a specific purpose, such as emergency healthcare.
8. Defending Against Removal
An individual can (and should) actively engage in all stage of the removal process (arrest, detention, bond, court, appeal: ABDCA). An experienced, committed immigration law attorney will fight aggressively for the client by all available lawful means to defeat the removal process outright, if at all possible, but at least to facilitate, ameliorate and prolong the client’s continuing presence in the U.S.
Bear in mind that the removal process does not always include all of the ADBCA steps, e.g an individual could be placed in proceedings for appearance before the court by service of a notice to appear without first being arrested, detained, or required to post bond.
The U.S. Constitution’s Bill of Rights applies to any person in the United States, even if unlawfully present, except where a provision explicitly applies only to U.S. citizens.
An individual (or family member, friend or employer) may retain an immigration law attorney to intervene at any stage of the removal process to oppose Immigration and Customs Enforcement (ICE) removal efforts. The attorney will enter an appearance with the government or court or both (G-28, E-28). If not already made available to him by the individual or family, the attorney must obtain a copy of two key documents: ICE’s Bond Determination (if the individual is under arrest or in detention), and the Notice to Appear (NTA) which is the government’s allegations of why the individual (referred to as the “Respondent”) should be removed from the U.S.
Crucial to the removal process is the prompt release of the Respondent on bond (with the lowest possible bond). However, by law not all respondents are bond-eligible and few individuals will choose to remain in ICE detention while the removal process plays out, potentially over a year or much longer, unless hearing of the case can be expedited.
The Respondent’s attorney will vigorously contest all government allegations and actions. For example, in motioning for bond reduction counsel should demand that the government substantiate its basis for its bond determination (the minimum bond is $1500).
By law there are actually only two considerations the Court should use in ruling on bond: (1) will the Respondent be a danger to the public, and (2) will the Respondent return to appear in the proceedings? Frequently in a bond proceeding the government will attempt to place a higher burden on a Respondent than is warranted by law.
Proceedings have two phases: (1) the master’s hearing in which the Respondent answers the NTA and requests relief from removal, and (2) the individual hearing where the Respondent has the burden of proving entitlement to relief. (The bond hearing is in a sense sealed off from the removal proceeding itself.)
In removal proceedings counsel must request on behalf of the client any non-frivolous form of relief from removal, including asylum, DACA, cancellation of removal, 212 (c) or (h) waivers, application for the victim-based U visa or VAWA, lawful permanent residence, or other applicable relief, depending on the client’s situation and status. Many such applications for relief enable a Respondent to apply for a work permit.
If a Respondent has a pending application for naturalization, the attorney should move for administrative closure of the proceedings until that application process has runs its course because, if the naturalization process is successful, the removal proceeding become moot as a U.S. citizen is not subject to removal.
If the only relief available to a qualified respondent, voluntary departure, because it avoids an order of removal and its negative consequences for future readmission, is valuable relief in its own right.
Upon request for good cause following the entry of a removal order ICE will sometimes defer the departure of the Respondent, enabling a work permit application.
By executive directives ICE Chief Counsel is authorized to request the courts to administratively close a removal proceeding in which the Respondent is deemed eligible for closure. Respondent’s counsel should always request, and make the strongest possible case for, a favorable exercise of prosecutorial discretion.
In mid-2014 pressure on the Administration to alleviate the rate of removals has reached a crescendo, and it is expected that before the end of 2014 the President will issue an executive order expanding authority for administrative closure and requiring its regular use. He may also initiate other reforms limiting the government’s use of removal
If an immigration court does enter an order of removal, the Respondent can challenge it by motion to the court and by an initial appeal to the Board of Immigration Appeals (BIA). A respondent may now submit such a motion even after return to the home country.
Detention by ICE and other executive or judicial action may be subject to challenge in the federal courts by way of motions for writs of habeas corpus or mandamus or by collateral attack.
When a removal proceeding is based on a respondent’s criminal conviction which would unavoidably lead to an order of removal, counsel must advise the client of the option of challenging the underlying criminal conviction through a post-conviction proceeding in the convicting court.
9. Returning To The U.S.
There are statutory procedures in place which permit an individual who has previously been ordered removed or who has voluntarily departed to return lawfully to the U.S. upon meeting prescribed conditions and following a required filing process. It is often the individual’s U.S.-resident family which will retain an experienced immigration law attorney for advice and services in this regard.
10. Non-Immigrant Visas
The “immigrant visa”, acquired abroad at a U.S. embassy or consulate, is singular; it is the equivalent of the green card which is acquired in the U.S. through adjustment of status.
All other visas are non-immigrant in nature, granted for an express purpose and period of time and designated by letter and an accompanying number. By way of examples, the B-2 visa allows a foreign national to visit or enroll in a limited education program; the B-1 for business reasons other than employment; the F and M to study, the E-1 & 2 to start or invest in a business; the H1, H2, J, L, O, P, and Q visas for employment or cultural exchange by employer or sponsor petition.
A critical element of eligibility is the visa applicant’s declared, credible assertion that before the visa’s expiration the applicant will return to the home country. That intention is tested by an analysis of the applicant’s “ties” to the home country, including a viable life there with a home, income and family relationships. The test of non-immigrant intent for the F visa has become somewhat less demanding. The expiration date of a period of stay is that stated in the I-94, issued to the visa holder upon entry (now largely electronically based).
The B-1 visa potentially has great utility for a visiting business person to solicit orders, interview for a job and the like, short of working for pay in the U.S. Because B-1 visa holders have been stretching the visa’s legitimate purposes, the government is now closely monitoring use of the visa.
The counterpart of the B-2 visa for nationals of Europe and similarly advanced economies is the Visa Waiver Program (VWP) which carries particular limitations, such as not being subject to renewal. An individual in the U.S. via VWP should contact an immigration law attorney with any concerns about status or possibilities such as marriage to a U.S. citizen.
The designated period of a non-immigrant visa is subject to extension by the government upon timely application.
The original purpose of a non-immigrant visa is subject to change or conversion into another form of non-immigrant visa, while the holder is in the U.S., e.g. a J-1 summer employment cultural exchange visa can be converted to an F-1 student visa, provided certain eligibility requirements are met.
Unique to the J visa is a requirement that a J visa holder may not change status, if when issued the visa was made made subject to a 2 year residence requirement in the home country. (The latter may be challenged or waiver.) There are numerous other permutations for the visa conversion process.