We want to hear from you! Contact Van Wormer Law today at (703) 244-6733 or contact@vanwormerlaw.com.

Monday, November 22, 2010

New H-1B Sister Blog Is Up and Running!

It's an exciting day, everyone! Our sister blog, Know Your H-1B Legal Rights, is finally up and running.

Whereas the information we post on this blog takes a broader view of a wide range of immigration topics, the new blog focuses more closely on providing information to future, current, and past H-1B visa holders about their H-1B legal rights.

Check out this first post to learn more about H-1B legal rights and the areas where we assist H-1B employees who are subject to unpaid wages, benching, fraud, and other questionable treatment from their employers.

If you are a current or former H-1B visa holder with questions about your H-1B rights, please visit our sister blog, Know Your H-1B Legal Rights, and contact our office at (703) 244-6733 or contact@vanwormerlaw.com for a free H-1B consultation.

Please Note: The information provided at this site is of a general nature and may not apply to any particular set of facts or under all circumstances. It should not be construed as legal advice and does not constitute an engagement of Van Wormer Law or establish an attorney-client relationship. No attorney-client relationship exists until Van Wormer Law has completed a conflicts check and the prospective client signs a representation agreement.

Thursday, November 11, 2010

Immigration ABCs: Traveling Outside the U.S. as a Greencard Holder (U.S. Permanent Resident)


Good morning, readers! Today, we are sharing with you some of the Frequently Asked Questions we receive at Van Wormer Law concerning U.S. permanent residents (greencard holders, LPRs) traveling outside the United States.

As you may already know, once you receive your greencard, you must maintain your permanent resident status or else risk losing / abandoning it.


USCIS says that you may have abandoned your permanent resident status if you:
  • Move to another country intending to live there permanently
  • Remain outside of the United States for more than 1 year without obtaining a reentry permit or returning resident visa. However, in determining whether your status has been abandoned, any length of absence from the United States may be considered, even if less than 1 year
  • Remain outside of the United States for more than 2 years after issuance of a reentry permit without obtaining a returning resident visa. However, in determining whether your status has been abandoned any length of absence from the United States may be considered, even if less than 1 year
  • Fail to file income tax returns while living outside of the United States for any period
  • Declare yourself a “nonimmigrant” on your tax returns
It is in the context of maintaining permanent residence that we encounter the most questions about traveling outside the United States as a permanent resident. USCIS has a good overview of the topic, but the following issue is not fully addressed there.

As a U.S. permanent resident, is there a specific time-period of travel outside the U.S. you should be aware of?
Yes. More than one, actually.

To start, the basic question that USCIS considers is "did this person intend to make the United States his or her permanent home?" If USCIS determines that you did not intend to make the United States your permanent home, you will be found to have abandoned your permanent resident status. Abandoning your permanent resident status makes you removable (deportable) under United States law as described in Section 237 or 212 of the Immigration and Nationality Act (INA).

To determine whether your travel outside the U.S. has caused you to abandon your permanent resident (greencard) status, USCIS uses a general test of whether you have been absent from the United States for more than one year. However, USCIS may find abandonment in trips of less than a year if it believes you did not intend to make the U.S. your permanent home.

Note: in practice we have observed that if you have been outside the U.S. on a trip that is SIX MONTHS or longer, USCIS is more likely to question your intent to keep your permanent resident status when you attempt to return to the U.S. If that happens, it can be helpful to provide evidence of your intent to make the United States your permanent home.

Here are some of the types of evidence that USCIS uses to determine your intent:

(1) Whether you filed for a I-131 travel document / reentry permit before you departed. Generally, a reentry permit issued to a permanent resident shall be valid for two years from the date of issuance. However, if since becoming a permanent resident you have been outside the United States for more than four of the last five years, the permit will be limited to one year, with exceptions.

(2) [ONLY for those employed outside the United States with a qualified employer:] Whether you have filed a N-470 application to preserve your residence for naturalization purposes.

(3) Whether you maintain a U.S. mailing address, keep U.S. bank accounts, and hold a valid U.S. driver’s license. Although these can be the easiest things to obtain to help prove your intent to make the U.S. your home, you must generally establish them before you leave for your travels outside the U.S.

So, plan ahead! Establish a U.S. mailing address, bank account, driver's license, and anything else you can use to show your ties to the United States (like investing in the U.S. stock market, becoming a member of a local civic group or organization...) WELL BEFORE you leave.

(4) Whether you file your income tax returns and report your income to the U.S. Internal Revenue Service and state taxing authorities. If you are a permanent resident, ALWAYS pay your taxes (consult a certified public accountant if you need assistance), but on your tax forms never file as a "nonimmigrant" or "nonresident." More IRS information can be found here.

Remember, obtaining the travel document (I-131) or any of the items above does not guarantee you entry into the United States upon your return; but the more of them that you have, the more able you will be to establish your intention to permanently reside in the United States.

If you are a greencard holder considering taking a trip outside the United States, or if you have any questions about maintaining your permanent resident status, please do not hesitate to speak with a qualified immigration attorney. You may contact our office at (703) 244-6733 or contact@vanwormerlaw.com.

Remember to join us next time for more Immigration ABCs!

Please Note: The information provided at this site is of a general nature and may not apply to any particular set of facts or under all circumstances. It should not be construed as legal advice and does not constitute an engagement of Van Wormer Law or establish an attorney-client relationship. No attorney-client relationship exists until Van Wormer Law has completed a conflicts check and the prospective client signs a representation agreement.

Monday, October 25, 2010

Immigrant ABCs: Extending, Changing, or Adjusting Your Status (EOS / COS / AOS)

Extending, Changing, and Adjusting Your Visa Status (EOS/COS/AOS)

...what is the difference? What do you need to know?

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I. Extension of Status (EOS)

Nonimmigrant visa holders in valid (unexpired and qualifying) visa status may, in certain circumstances, EXTEND THEIR STAY IN THE U.S. UNDER THEIR CURRENT NONIMMIGRANT VISA STATUS.

You may apply to Extend your Status if:
  • You were lawfully admitted into the United States with a nonimmigrant visa
  • Your nonimmigrant visa status remains valid
  • You have not committed any crimes that make you ineligible for a visa
  • You have not violated the conditions of your admission
  • Your passport is valid and will remain valid for the duration of your stay
Exceptions--You may NOT apply for extension of status if your nonimmigrant visa status is any of the following:
  • Visa Waiver Program
  • Crew member (D nonimmigrant visa)
  • In transit through the United States (C nonimmigrant visa)
  • In transit through the United States without a visa (TWOV)
  • Fiancé of a U.S. citizen or dependent of a fiancé (K nonimmigrant visa)
  • Informant (and accompanying family) on terrorism or organized crime (S nonimmigrant visa)
The EOS Process: To extend your nonimmigrant status in the United States, you must file a request with U.S. Citizenship and Immigration Services (USCIS) on the Form I-539, Application to Extend/Change Nonimmigrant Status before your authorized stay expires. If you remain in the United States longer than authorized, you may be barred from returning and/or you may be removed (deported) from the United States. To determine the expiration date of your authorized stay, check the date in the lower right-hand corner of your Form I-94, Arrival-Departure Record. USCIS recommends that you apply to extend your stay at least 45 days before your authorized stay expires.


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II. Change of Status (COS)

Nonimmigrant visa holders in valid (unexpired and qualifying) visa status may, in certain circumstances, STAY IN THE U.S. FOR A DIFFERENT NONIMMIGRANT PURPOSE THAN LISTED ON THEIR CURRENT NONIMMIGRANT VISA.

You may apply for Change of Status if:
  • You were lawfully admitted into the United States with a nonimmigrant visa
  • Your nonimmigrant visa status remains valid
  • You have not committed any crimes that make you ineligible for a visa
  • You have not violated the conditions of your admission
  • Your passport is valid and will remain valid for the duration of your stay
Exceptions--There are some very specific exception categories that can limit COS eligibility, as follows.

Exclusion categories for COS: you may NOT apply to change your nonimmigrant status if you were admitted to the United States in the following categories:
  • Visa Waiver Program· Crew member (D nonimmigrant visa)
  • In transit through the United States (C nonimmigrant visa)
  • In transit through the United States without a visa (TWOV)
  • Fiancé of a U.S. citizen or dependent of a fiancé (K nonimmigrant visa)
  • Informant (and accompanying family) on terrorism or organized crime (S nonimmigrant visa)

M-1 Limitation to COS: If you are a vocational student (M-1), you may NOT apply to change your status to a(n):

  • Academic student (F-1)
  • Any H status (Temporary worker), if the training you received as a vocational student in the United States provided the qualifications for the temporary worker position you seek.

J-1 Limitation to COS: If you are an international exchange visitor (J-1), you may NOT change your nonimmigrant status if:

  • You were admitted to the United States to receive graduate medical training, UNLESS you receive a special waiver.
  • You are an exchange visitor and are required to meet the foreign residence requirement, UNLESS you receive a waiver. [NOTE: If you do not receive a waiver, you may ONLY apply to change to a diplomatic and other government officials (A visa) or representatives to international organizations (G visa)]
The COS Process: To change your visa status while in the United States, you (or in some cases your employer) must file a request with USCIS on the appropriate form before your authorized stay expires. USCIS recommends that you apply as soon as you determine that you need to change to a different nonimmigrant category.

Important Note: Until you receive approval from USCIS, do NOT assume the status has been approved, and do NOT change your activity in the United States. The consequences of failure to maintain your nonimmigrant status can be very severe--you may be barred from returning to and/or removed (deported) from the United States.


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III. Adjustment of Status (AOS)

Adjustment of Status is the process of obtaining Lawful Permanent Resident (greencard) status in the United States without having to leave the United States to do so. It is important to distinguish AOS from EOS / COS (above) because AOS concerns obtaining IMMIGRANT status, versus changing (COS) or extending (EOS) NONimmigrant status.

First: Determine Your Basis to Immigrate

The first step in the adjustment of status process is to determine if you fit into a specific immigrant category. Most immigrants become eligible for permanent residence (greencard) through a petition filed by a family member or employer. Others may become permanent residents through first obtaining refugee or asylum status, or through other special provisions. It is advisable to consult with a qualified immigration lawyer at this point, to be certain that you understand all your options.

Second: File the Immigrant Petition
When you know what category best fits your situation, in most cases you will need to have someone file an immigrant petition on your behalf.

  • Family Based
    Family based categories require that a U.S. citizen or permanent resident relative file a Form I-130, Petition for Alien Relative, on your behalf.
  • Employment Based
    Employment based categories usually require the intending U.S. employer to file a Form I-140, Petition for Alien Worker, on your behalf. Conversely, entrepreneurs who intend to invest significant amounts of capital into a business venture in the United States may file Form I-526, Immigrant Petition by Alien Entrepreneur” on their own behalf.
  • Special Classes of Immigrants
    In specific circumstances, immigrants may file a Form I-360, Petition for Amerasian, Widow(er), and Special Immigrant, or have one filed on their behalf.
  • Humanitarian Programs
    Most humanitarian programs do not require an underlying petition, although additional requirements may need to be met before there can be an adjustment of status.
To learn more about the immigrant qualification categories described above, you can visit USCIS. To determine whether or not your specific circumstances allow you to qualify for one or more of these categories, please contact a qualified immigration lawyer.

Third: Check Visa Availability

You may not file your Form I-485 until a visa is available in your category. If an immigrant visa is currently available to you, you may be able to apply for permanent residence status on Form I-485. Visa Availability & Priority Dates link here.

Fourth: File Form I-485, Application to Register Permanent Residency or Adjust Status
Regardless of whether a petition must be filed and approved prior to your filing Form I-485 or whether it may be filed concurrently, you will need to apply for permanent residence on Form I-485 at the appropriate time. (Note: Some categories may require a different form than Form I-485.)

Fifth: Go to your Application Support Center appointment (fingerprints)
After you file your application, you will be notified to appear at an Application Support Center for biometrics collection, which usually involves having your picture and signature taken and being fingerprinted. This information will be used to conduct your required security checks and for eventual creation of a green card, employment authorization (work permit) or advance parole document.

Sixth: Go to your interview (if applicable)
You may be notified of the date, time, and location for an interview at a USCIS office to answer questions under oath or affirmation regarding your application. You must attend all interviews when you receive a notice.

Seventh: Get you final decision in the mail
After all paperwork has been received, interviews conducted (if necessary), security checks completed, and other eligibility requirements reviewed, your case will be ready for a decision by USCIS. In all cases, you will be notified of the decision in writing.

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IV. Conclusion

Each situation is different, so visa holders who are interested in learning about EOS, COS or AOS may want to consult with an immigration lawyer on the facts and nuances in their respective cases. Individual facts vary, and can create situations where certain immigration opportunities and/or risks are more likely to arise.

We hope you have found this information helpful. Please do not hesitate to contact our firm today at (703) 244-6733 or contact@vanwormerlaw.com.

Remember to join us next time for more Immigration ABCs!

Please Note: The information provided at this site is of a general nature and may not apply to any particular set of facts or under all circumstances. It should not be construed as legal advice and does not constitute an engagement of Van Wormer Law or establish an attorney-client relationship. No attorney-client relationship exists until Van Wormer Law has completed a conflicts check and the prospective client signs a representation agreement.

Monday, October 4, 2010

Immigration News: New Filing Fees, Effective 11-23-2010

It's official. USCIS has announced a final decision on a new round of changes to the filing fees that currently provide about 90 percent of its yearly budget. (See After Public Comment, U.S. Citizenship and Immigration Services Announces Final Rule Adjusting Fees for Immigration Benefits, USCIS Fact Sheet, September 23, 2010.)

The majority of this "change" means "increase," however, in some categories application fees will actually decrease.

DECREASED FEES:
  • Petition for Alien Fiancé/e (Form I-129-F) - reduced by $115, to $340
  • Application to Extend / Change Nonimmigrant Status (Form I-539) - reduced by $10, to $290
  • Application to Adjust Status from Temporary to Permanent Resident (Form I-698) - reduced by $350, to $1,020
  • Application for Family Unity Benefits (Form I-817) - reduced by $5, to $435
  • Application for Replacement Naturalization / Citizenship Document (Form N-565) - reduced by $35, to $345
  • Application for Travel Document (Form I-131), when filed for a Refugee Travel Document

UNCHANGED FEES:

The USCIS did not increase the filing fee for naturalization applications, and also eliminated two citizenship-related fees for U.S. service members and veterans who are eligible to apply for naturalization using form N-400 with no fee:
  • Request for a Hearing on a Decision in Naturalization Proceedings (Form N-336)
  • Application for Certificate of Citizenship (Form N-600)

FEE WAIVERS MADE MORE WIDELY AVAILABLE:

USCIS has expanded the availability of fee waivers for certain benefits available to humanitarian parole applicants, victims of trafficking, and persons seeking to appeal a denial of any application or petition that did not initially require a fee.

INCREASED
FEES:

USCIS will raise application and petition fees by approximately 10 percent. Fees will increase for (among many others):
  • Application to Replace Permanent Resident Card (Form I-90) - increased by $75, to $365
  • Petition for Alien Relative (Form I-130) - increased by $65, to $420
  • Immigrant Petition for Alien Worker(Form I-140) - increased by $105 to $580
  • Application to Register Permanent Residence or to Adjust Status (Form I-485) - increased by $55 to $985; the biometrics fee will increase by $5, $85
  • Application for Employment Authorization (Form I-765) - increase by $40, to $380

EFFECTIVE DATE:

The new fees will take effect on November 23, 2010.

Mark your calendars! Applications postmarked or filed on November 23rd, or after, will need to pay the new fees. (For details, see the revised fee schedule on the USCIS Fact Sheet, After Public Comment, U.S. Citizenship and Immigration Services Announces Final Rule Adjusting Fees for Immigration Benefits, September 23, 2010.)

WHY THE INCREASE?

Unfortunately, USCIS does not have much choice but to raise its fees. Congress requires the agency to provide 90 percent of its budget from fee revenue. Given the current climate of fiscal constraint, coupled with the resentment felt towards immigrants in some areas, it seems unlikely that Congress will provide the USCIS with enough funding to prevent fee increases.

We hope you have found this information helpful. Please do not hesitate to contact our firm today at (703) 244-6733 or contact@vanwormerlaw.com.

Remember to join us next time for more Immigration News!

Please Note: The information provided at this site is of a general nature and may not apply to any particular set of facts or under all circumstances. It should not be construed as legal advice and does not constitute an engagement of Van Wormer Law or establish an attorney-client relationship. No attorney-client relationship exists until Van Wormer Law has completed a conflicts check and the prospective client signs a representation agreement.

Thursday, September 30, 2010

Immigration ABCs: Immigrant vs. Nonimmigrant

To the immigration newcomer, the world of United States immigration can be a daunting place.

Lets break it down.

Generally speaking, immigration matters can be divided into two major subcategories:
IMMIGRANT matters, and NONimmigrant matters.

Immigrant matters concern permanent immigration (greencard) status, and can be based upon employment, family relationship, asylum, or refugee status. There are other bases for permanent immigration status that depend on a variety of facts specific to each individual. USCIS provides an overview of these other options here, but if you think you may fall into one of these "other" categories, it is usually best to consult an immigration lawyer to determine your best option.

Nonimmigrant matters concern temporary immigration status, and can similarly be based upon employment or family relationship, as well as other qualifying factors that fall into an alphabetical chart of temporary visa types that can be found here (arranged by type, not letter) at the State Department website. Here is the list I use for my own quick reference in practice:

B-1/B-2 Visitor : B-1 - for Business / B-2 - for Pleasure
E-1 - Treaty Trader / E-2 - Treaty Investor
F-1 - Academic Student
G - Representatives of International Organizations
H1B - Specialty Occupation – General Applications, and Benching/Nonpayment Complaints
H1C - Registered Nurses
H2A - Agricultural Labor
H2B - Other Temporary Labor
H3 - Trainee
I - Representatives of Foreign News Media
J - Exchange Visitor
K - Fiancé(e) of U.S. Citizen
L - Intra Company Transferee
M - Vocational Student
O-1, O-2 - Extraordinary Ability
P-1, P-2, P-3 - Athletes and Group Entertainers
Q - International Cultural Exchange Program
R - Religious Vocation or Profession
TN - Trade NAFTA Professionals

In reality, there are a number of other nonimmigrant temporary immigration status options, and often an individual may potentially qualify for more than one option. That is why it is usually best to consult an immigration lawyer to be sure that you know all your options.

We hope you have found this information helpful. Please do not hesitate to contact our firm today at (703) 244-6733 or contact@vanwormerlaw.com.

Remember to join us next time for more Immigration ABCs!

Please Note: The information provided at this site is of a general nature and may not apply to any particular set of facts or under all circumstances. It should not be construed as legal advice and does not constitute an engagement of Van Wormer Law or establish an attorney-client relationship. No attorney-client relationship exists until Van Wormer Law has completed a conflicts check and the prospective client signs a representation agreement.

Thursday, September 2, 2010

Friday, August 20, 2010

Wednesday, August 18, 2010

Website Nearly Ready!

The Van Wormer Law website is almost ready to go! As you will soon see, we've decided to use an interior shot of the occulus at the National Gallery of Art in Washingtin DC (above) as an integral part of our banner design.

Just a few more tweaks (and tweets), and we will publish. If all goes well, the site will be fully functional and ready for your perusal no later than August 22. Until then, check out the other links to the right (LinkedIn, Avvo, Facebook...) to learn more.

Tuesday, July 27, 2010