Immigration Law

In the area of immigration law, our office specializes in processing all types of immigration visas and petitions including H1B visas, E treaty trader or investor visas, family residency, employment-based permanent residency visas, asylum, visa waivers, religious visas, O visas for aliens of extraordinary abilities, TPS, NACARA, citizenship or naturalization, immigration court proceedings, deportation or removal hearings, and immigration consequences from past criminal convictions.

Frequently Asked Questions:

If I have a child who is a US citizen, can I obtain legal status in the US?

You can do this in two circumstances: 1). If your child is over the age of 21 with the ability to support you, your child can file a residency petition for you, if you came into the US with a visa. If you did not enter the US with a visa, you may be eligible for a waiver (or pardon) that may allow you to adjust to legal status, or you may also adjust status if you are 245i eligible (see explanation below of who is 245i eligible); and 2). If you have been in the US for 10 years and you can demonstrate that your child will suffer an extreme hardship if you are removed to your native country, you may file for cancellation of removal or deportation.

I entered the US without a visa (or without inspection), am I eligible to obtain residency in the US? Or what options do I have to legalize myself?

There are generally 3 options through which people are able to obtain legal status in the US: 1). An employment petition; 2). A petition filed by an immediate family member; or 3). A special petition such as political asylum or cancellation of removal (deportation). However, in general, people will fall in one of 4 categories of eligibility:

1). People who entered the US with a visa and are eligible to get their residency in the US through a family petition (even if the visa has expired or the visa was not valid).

2). People who entered the US without inspection or visa and are eligible to obtain residency through family or employment because they are 245i eligible (see explanation below of who is 245i eligible).

3). People who came into the US with a valid US visa, with a current, un-expired I-94 (small white card issued at the time you entered the US, which tells you how long you are allowed to remain in the US). These persons are eligible to apply for any other category of visa. The visa approval will depend on the person meeting the specific qualifications required by the particular visa.

4). Persons who came into the US without inspection or persons that came with a visa and the visa has expired, may be eligible to apply for residency in the US, however, their adjustment of status petition may require a waiver. A waiver is a “pardon” from the US government that says that even though you have violated an immigration regulation you will be granted a green card under special circumstances. These waivers are generally granted to individuals with special family connections to the US. These waivers are most commonly issued at a US consulate abroad.

Can I obtain my residency through employment, if my boss wants to sponsor me?

To be eligible for an Employment Based Residency, you (the beneficiary) must meet all of the criteria in one of the three following categories:

Category I:
Must be living in the U.S. on or before December 18, 2000 (According to the former INA §245(i) law. Currently there are more than one proposed amendment to this statute which impose different statutory date limitations for filing. Therefore it is advisable to initiate this procedure as soon as possible if the requirements are fulfilled).
Must have never left the U.S. without permission of The US Immigration Service
Must have an offer of employment from a U.S. employer, who has agreed to sponsor the beneficiary for the residency
Must receive a salary equal to or above the prevailing wage offered for such a position in the State in which the job will be performed

Category II:
Must be lawfully present in the U.S. on a current nonimmigrant visa
Must not have violated conditions of nonimmigrant visa

Category III:
Must be residing outside the U.S.
Must not have been previously deported or removed from the U.S.
Must not be subject to an order of removal, exclusion, or deportation

How can I obtain a US social security number ?

In order to obtain a social security number, you must file a application form SS-5 with the Social Security Administration. The Social Security office will ask for identification and immigration authorization (evidence of a visa which allows you to obtain a social security number, a work authorization card, or a green card).

How can I obtain work authorization ?

To obtain work authorization, you must first be eligible for it. In order to be eligible for work authorization, you must have entered the US with a visa that allows work authorization. For example, K-1, V-1, optional practical training, derivative beneficiaries of E, H, & L visas, etc., or you if you have a residency application pending and you are eligible to adjust status and there is a visa immediately available, you may be eligible to obtain work authorization (the specific point in time at which you are eligible depends on the specific circumstances of your entry into the US.

You should consult your attorney to identify if you are eligible). You are not eligible to obtain work authorization with a visitor or tourist visa.

To obtain work authorization you must file an I-765 application with the Immigration Service at either a local office or at a service center. Upon approval of the application you will receive the authorization in the mail.

This process generally takes from 3 to 4 months after the application is filed and eligibility is established. You must have a legal basis to obtain the authorization.

Who is eligible for asylum and what are its benefits?

Aliens who have remained in the U.S. for less than one year and are part of an eligible “asylum class" (i.e. persecuted due to political party, race, religion, gender, sexual orientation group, social group, etc.)

Immediate family members may be eligible for asylum status with all its benefits such as work authorization and being able to legally remain in the U.S., as long as they have been named in the alien's asylum application, even if any of the named family members are not present in the U.S. at the time the application is filed.

Who is eligible for US citizenship and what are its benefits ?

In most situations, a person is eligible to apply for Naturalization, if they meet the following requirements:

Applicant has been a lawful permanent resident for five years (or three years for spouses of United States Citizens)
Applicant is 18 years old
Applicant is of good moral character
Applicant can speak, read, and write English
Applicant must pass a test on U.S. history and government
Applicant was physically present in the U.S. at least half the requisite time
Applicant has maintained lawful permanent residence continuously
Applicant swears loyalty to the U.S. by taking an oath of allegiance
Benefits include the right to vote for in all government elections (federal, state and local), and the fact that certain family members may be immediately eligible to receive citizenship, such as minor children. Other family members are eligible to receive a green card with shorter wait periods than family members of residents (see Family based residency section for estimated wait periods).

My spouse is a legal permanent resident, how long do I have to wait to get my legal documents ?

Your spouse may apply for your residency immediately, however, you will have to wait approximately 5 years before you receive your immigration documentation. Please refer to the visa bulletin published by the department of state at:

I was arrested by the police, am I going to have trouble with immigration?

In general any criminal charge may have a negative impact on your immigration status. Criminal convictions may cause the Immigration Service to deny an application, to start deportation proceedings or to detain or imprison an individual. If you are not a US citizen and you are facing criminal charges you should have your case reviewed by an immigration lawyer as well as a criminal attorney.

There are two types of criminal charges that are important: “aggravated felonies” and “crimes of moral turpitude”. Aggravated felonies are serious offenses involving theft, drugs, and acts of violence.

Crimes of moral turpitude are those involving an act of moral deficiency for example shoplifting, fraud, assault and battery with a weapon and many others.

Any conviction for an aggravated felony or a crime of moral turpitude can result in deportation or exclusion (denied entry into the US). In addition, any conviction for any crime may result in a denial of any application at the discretion of the Immigration Service.

A conviction is any admission of responsibility for a criminal charge made in court, even if it is not called a guilty plea. Generally, if you have been ordered to pay a fine or placed on probation you have admitted responsibility.

My relative was stopped at an airport (in any US city) and released to my custody, what are my responsibilities and what does my relative have to do?

Your responsibility as a “sponsor” is to make sure that the relative goes to court on the scheduled date or you will loose the money that was paid to secure your relative’s release. If the released relative does not show up to court, there are no other risks or penalties for the sponsor. The relative must appear at all scheduled immigration hearings or appointments.

What is a Individual tax ID number (ITIN), what are its benefits, and how do I get it?

An Individual tax ID number is a number issued by the Internal Revenue Service (IRS) to record any taxes which a person who does not have a social security number owes. The benefit of using an ITIN number is that it provides an individual with a way to declare and pay taxes, even if the income earned was reported to an invalid social security number. This may serve as evidence that a person has been in the US for a period of time to demonstrate eligibility for an immigration benefit such as cancellation of removal. It also can be used to demonstrate work experience to establish eligibility for a green card based on employment, as well as to provide evidence of an employers’ ability to pay when sponsoring an employee for a green card.

To obtain a tax ID number you must file application form W-7 with the IRS with evidence of identity like a copy of your passport. You will receive the number in the mail approximately within 1 to 2 months.

Can my employer use my Tax ID number to pay my wages?

No, because he/she is unable to make the mandatory social security payments with this number. The only way your employer can pay you using the ITIN number is if you are hired as an independent contractor, not as an employee. Even if your employer does not pay you using the ITIN number, you can still file taxes using the ITIN number.

What is government aid and can receiving it affect my immigration status?

Government aid is any public assistance or service you receive that you do not pay for (example: public housing, food stamps, free medical benefits, etc.). Receiving government aid may prevent you from obtaining an approval of an immigration petition. Be very careful before you accept any free government benefit.

What are some of the most common problems with taxes that can affect my immigration status? Why is declaring taxes correctly important for my immigration status?

Most immigration applications will require the production of tax records at some point in the process. False or inaccurate information on your tax returns can have a negative impact on your immigration status which may result in delays or even a denial. If taxes have been filed erroneously in the past, you can file amendments or corrections, which will mean you will be responsible for paying back any taxes which should have been paid if the taxes were filed correctly in the first place. Some common bad practices to avoid include:

1). Misstating filing status. If you are married and living with your spouse, you cannot file as single, head of household, etc.
2). Declaring dependents who are not dependents according to the definition in the tax code. You may not claim as dependents individuals or family members not residing in your house (specially if they do not live in the US). There are specific conditions that must be met in order for a person living in your house to be a dependent. Make sure you review these carefully with your accountant or tax preparer.
3). Under reporting or not reporting income. All income received must be reported by law. If you have a household of 4 persons and you are claiming less than $10,000 or an extremely moderate income, it is questionable and could lead to an investigation.

Do I need to have my visa stamped on my passport for it to be valid ?

You do not need to have your non-immigrant visa stamped in your passport if you are already present in the U.S. A visa approval notice from the immigration service is sufficient if it contains an I-94 section at the bottom of the approval (otherwise, you must travel outside of U.S. to get the visa stamped). However, if you are currently outside of the U.S. or if you travel outside of the U.S., you will need the visa stamped in your passport or a green card in order to enter or return to the U.S.

What happens if my case or documentation is misplaced or transferred to another city by the Immigration Service?

You should appear at your local USCIS office and request that your file be transferred to the appropriate Immigration office or Service Center.
What happens if my green card expires and I have not received a new one in the mail? Am I out of status?

No. You are not out of status. However, you must appear before an immigration officer to obtain an I-551 stamp in your valid passport. To try to prevent this, you should apply to renew your residency/green card at least 6 months before it expires.

Note: This does not apply to those having conditional residency (or 2 year resident cards). If you have a conditional residency you must apply for a removal of conditions with the Immigration Service.

Can I get permission to travel (or advanced parole) while my case is being processed by the IMMIGRATION SERVICE? What do I need to get permission to travel?

If you apply for a non-immigrant visa (i.e. H-1B, O, P, L, E, etc.), there is no permission to travel available while your application is pending, and your application will be denied if you travel outside of the U.S.

If you apply for residency through family or employment, you must request “advanced parole” or permission to travel from the Immigration Service, before traveling outside of the U.S. However, not everyone is eligible for this, and the Immigration Service may grant or deny your request at their discretion.

Eligibility for advanced parole or permission to travel:

You must have been in lawful status at the time you filed your residency adjustment of status petition
You filed your application for residency/adjustment of status on or before September 17, 1998.
If you are out of status at the time that you filed for residency/adjustment of status, you may be able to travel if the Immigration Service grants you a waiver of inadmissibility.
Note: This is extremely difficult to obtain.
If you are eligible to obtain advanced parole or permission to travel while your residency application is pending, you must submit the following:

Application I-131
2 immigration photos (showing your right ear)
the filing fee for the I-131 application (these fees change periodically)
Supporting documentation to demonstrate the purpose of your travel (ex: letter from your employer stating you must travel for business, an invitation to attend a wedding, medical records of an ill immediate family member, etc.).

Why is my case taking longer than anticipated to be processed by the IMMIGRATION SERVICE? What does this mean?

The Immigration Service provides estimates for the time necessary to complete processing an application. However, these are ONLY ESTIMATES. The processing time is affected by the overall volume of applications submitted, the number of employees assigned by the Immigration Service to process particular types of applications, as well as many other variables. For this reason, it is not uncommon for applications to take longer to process, than what the Immigration Service estimates.

Is there a way to pressure the IMMIGRATION SERVICE to work faster on my case ?

Yes. If there have been unreasonable delays in your case, you may file a complaint against the Immigration Service in the federal court, and the court can force the Immigration Service to make a decision in your case. Bear in mind that this decision can be positive or negative. You must carefully evaluate with your attorney if this is worth the added risk and cost of the additional work required for this complaint.

What happens if I move, while the IMMIGRATION SERVICE is still processing my case ?

You must notify the Immigration Service of your change in address. If you move out of state, the Immigration Service will likely transfer your case to the Immigration office with jurisdiction over the geographical area you moved to, which may trigger delays in the processing of your application.

Can I start working with my new employer before I finish transferring my H-1B visa ?

Yes. The law (AC-21) allows an H-1 B visa holder to begin working with a new employer as soon as his/her transfer application has been filed with the immigration service, without having to wait for an approval. However, if your H1B transfer application is denied, you will be left out of status or “illegal”, making it much more difficult to return to legal status in the future.

What is adjustment of status ?

It is to change from non-immigrant status or any other immigration status, to a lawful permanent resident status (or obtaining a green card).

Who is 245i eligible to adjust status ?

245i eligible means that you qualify under the 245i provision of the immigration act, for eligibility to adjust your legal status by paying a penalty fee, if you meet the following conditions:
1). You must have been present in the US before December 18, 2000, and
2). You must have filed a family or employment based residency petition on or before April 30, 2001, or you must have been the derivative beneficiary of such a petition.
Note: Even if your initial petition was not successful, but was filed on or before April 30, 2001, you may still be 245i eligible under certain circumstances, and may apply again for residency through another family or employment petition (consult an attorney to make this determination).

What is a derivative beneficiary ?

A derivative beneficiary is a spouse or child of an individual who was named as the primary or main beneficiary of a visa application or residency petition, if the type of petition allows family members to be included. For example:

a). My aunt who is a citizen filed a residency petition for my mother when I was under the age of 21, this means my mother’s spouse and I are derivative beneficiaries of that application.

b). My father’s employer started a petition for my father when I was under the age of 21, this makes me and my father’s wife derivative beneficiaries of that petition.

c). My mother marries a US citizen when I was under the age of 21, I was named as her child in the petition, however, this type of residency petition does not allow me to be a derivative beneficiary. In this case, my stepfather is required to file a separate residency petition for me, if he wants to petition for my residency.

I was previously ordered deported, but I have not left the US. Is there anything I can do ?

You can do one of two things: 1). Apply in the court that issued the order of deportation, for the court to vacate or cancel the order of deportation; or 2). Apply with the immigration service to waive or cancel your former order of deportation. If you are outside of the U.S., you may request permission from the U.S. Attorney General to re-enter the country.

These are extremely complicated procedures and their success depends on the individual history and circumstances of the person applying. Consult an attorney to evaluate if it makes sense to purse any of these options.

Do I have to notify immigration if I change address ?

The immigration regulations require that all persons who are not citizens of the US (including residents) inform the US Immigration Service of any change in their address.

If I am a legal permanent resident, can I file a fiancé petition for my future spouse who is outside of the US ?

No, only US citizens can file for a fiancée. As a legal permanent resident you may file for a spouse who is outside of the US, however, this takes approximately 5 years or more.

If I am in removal proceedings, can I renew my work authorization ?

In some situations you can. For example, if you were:
1). Paroled (or permitted to enter) into the US for the purpose of applying for asylum.
2). If you have an asylum claim pending, for which you were previously issued employment authorization.
3). If you are eligible for TPS
4). If you have a residency petition through employment (note: while you are eligible, the Immigration Service may refuse to issue work authorization, as the regulations have not clearly defined the procedure).

How do I renew my work authorization card? How many months before it expires should I renew it?

To renew your work authorization card, you must file application I-765 with the Immigration Service, together with the appropriate filing fees (these vary). You should apply for renewal 6 months before your work authorization card expires.

If I have an employment residency application pending, can I change employer and continue with my pending application, if the new employer is willing to sponsor me?

This is only possible in some very specific situations. For example:
1). If your I-140 has been approved for at least 6 months, you may change employer as long as the new employer and the new position are similar to the ones in the original petition, and the new employer is in the same geographic region as the original employer.
2). If the original employer has changed corporate identity or merged with a new company and the new employment is with the new company.
In general however, it is not advisable to change employer while your residency application is pending.

For more information regarding Immigration Law contact a Rhode Island Immigration Lawyer at the Law Offices of James P. Howe