Many people find themselves in the U.S. after escaping from their home countries due to war or fear of persecution. Some of these immigrants become refugees and asylees in the U.S.
The U.S. immigration process for someone seeking to move from being a refugee to an American citizen can be long and difficult to navigate. However, with the help of an experienced immigration attorney, asylees and refugees can fast-track their way to becoming U.S. residents.
Read on to find out how the U.S. immigration system works and the steps you’ll have to follow to acquire legal citizenship.
Obtaining Refugee Status
Foreigners who want to become refugees in the U.S. should apply for refugee status while they are still in their home country. However, asylum seekers can request for asylum while they are at the U.S. borders, at the entry points, or inside the country.
The easiest way to get your U.S. refugee application considered is to be referred to the Refugee Admission program. The program gives priority to people referred to them by non-governmental organizations, the U.S. embassy, or other humanitarian organizations, such as the United Nations.
Priority is also given to special humanitarian concern groups recommended by the U.S. refugee program. If one of your family members is already in the U.S. on a refugee or asylee status, you also have high chances of being granted refugee status.
For your refugee application to be approved, you must show that you can’t stay in your home country due to persecution based on political, nationality, race, or religious factors. You also have to provide proof of persecution and give a detailed affidavit explaining why you are afraid to go back to your home country.
Finally, you’ll have to undergo a medical exam and be investigated to prove you are not a threat to U.S. security.
When your application is approved, you will be issued with a visa, which you’ll use to enter the United States. If your refugee application request is denied, you cannot appeal the decision.
Seeking Permanent Residency Status
Before refugees can become U.S. citizens, they become permanent residents or green card holders.
The provision of a green card to a refugee is usually a lengthy and challenging process. However, the International Rescue Committee (IRC) assists immigrants and refugees looking to acquire green cards. An immigration attorney in Las Vegas can also help you acquire a green card.
For a refugee to be eligible to become a permanent U.S. resident, he or she must have been in the country for at least one year. When you become a permanent resident, they can live and work in America.
Eligibility for Citizenship by Naturalization
Naturalization refers to the process through which a refugee or a foreign national gets U.S. citizenship. However, before a refugee can qualify to apply for citizenship by naturalization, he or she must have lived in the U.S. as permanent residents for five years.
The same case applies to asylees.
However, refugees may be eligible to apply for citizenship by naturalization much earlier than asylees as the years of permanent residency are calculated differently.
For refugees, the years they have stayed in the United States can be rolled back. This means that their five years of permanent residency can be calculated from the date they entered the country.
For example, if you have spent five years in the U.S. as a refugee, and apply for a green card after five years, then you have already fulfilled the five-year term. This means that you are eligible to apply for citizenship when your permanent residency application is approved.
Coming to asylees, the application for citizenship is a little different than that of refugees. For the former, only one year of their time in the U.S. before permanent residency is approved can be included in the five-year term required for application for citizenship.
For instance, if an asylee has been in the U.S. for four years and at the end of the fourth year, they decide to apply for permanent residency, once the residency is approved, only one year of the four years will count in the five-year citizenship requirement. Therefore, the asylee will have to wait four years before they can apply for citizenship.
Don’t Get Confused by the Green Card Date
Your green card will have the date your permanent residency was approved. The U.S. Citizenship and Immigration Services (USCIS) recognizes the rollback provision for refugees. Therefore, if you are a refugee, the green card will also have the date you gained entry in the U.S.
If you are an asylee, the card will include a date one year before your permanent residency was approved.
The green card date is supposed to guide you on when your five years as a permanent resident in the U.S. elapses. Although you can’t rely exclusively on the date to apply for citizenship, you can use it to know if you have met the five-year citizenship requirement.
The Early Citizenship Application Rule
The 90 days early citizenship application rule allows you to apply for citizenship 90 days before your five years of permanent residency have passed.
The early application rule is based on the argument that the USCIS may not call you for your citizenship interview until the 90 days have elapsed.
Applying for Naturalization
Once you meet the legal requirements to apply for citizenship, you will need to submit an application form together with the necessary supporting documents and a $725 fee to the USCIS.
The IRC can help you to fill in the form and prepare the necessary documents.
You’ll also need to take a biometric test, where the Department of Homeland Security, the Federal Bureau of Investigation and the Department of Justice will carry out a background check. Once you are cleared, you will be invited to an in-person interview with USCIS officers.
The USCIS officers may ask you questions related to:
Your knowledge of the U.S. constitution
Your willingness to take the oath of allegiance
Your ability to read, speak, and write English
Get Help from Las Vegas Immigration Attorneys
If you are applying for a refugee or asylum status, an immigration attorney can help you. You can ask the lawyer any questions you have about the process and what is expected from you.
If you are already in the U.S. living as a refugee or asylee, a Las Vegas immigration attorney can help you pursue your permanent residency application. A skilled lawyer can make the application process easier. Moreover, the attorney will explain the proper procedure to follow and give you clear options to resolve any pending issues.
An immigration attorney will help you to fill the documents required to apply for citizenship by naturalization. The attorney will also guide you on the best way to prepare for your interview.
For those who are not a citizen and want to become an American citizen, you will need to know the process. The truth is it is a bit complicated. Additionally, you should try to know what the country has to offer you in terms of medical services. A Columbus immigration lawyer can help you in that regard. This article will work you through the basics.
Health is important. With a healthy body, you can carry out all normal activities. And the United States could be challenging for new citizens, depending on where you live previously. You don’t want the risk of being bed-ridden when you are just a new citizen. You want to enjoy all the medical benefits that are available to you. It would be a wise decision to consult a Columbus immigration lawyer, but this article will be a good place to start.
If you want to file Medicare benefits as a citizen of the United States you can go ahead to socialsecurity.gov. It will only take 30 minutes or less. But if you are not a citizen, you need to understand some things before you take action.
The first problem for people who want to be a citizen is how to obtain Medicare benefits and supplement their medical insurance. They know if the could do that, living in the country will be easier. The good news is that they might be enrolled in a medical service called Medicare, though the program has some criteria they must meet.
What is Medicare?
Medicare is a program organized by the government and partly funded by the country’s employers and employees through tax. There are various plans in the program which include
Hospital insurance (plan A) – this covers hospice care, inpatient stays in hospital, health care for a nursing home, health services for some homes.
Medical insurance (plan B) – This covers outpatient care, doctor’s visit and some of the services not covered in the first plan above.
Prescription Drug Coverage (plan D) – this covers health prescriptions
What to know about eligibility?
Primarily, a U.S citizen is eligible to Medicare. Those who are permanent residents of more than 65 years of age are also eligible. If you have stayed in the U.S for five consecutive years, you will be eligible. But if you take a break, say you live in the U.S for 4 years and leave for another country, you will not be eligible when you come back. Even if you live for the remaining one year, the terms say you have interrupted your stay and you are not eligible. Your stay must be around for five consecutive years long or nothing.
If you have a question, a Columbus immigration lawyer can help.
Medicare plans are not like social security benefits. Non-citizens of the country are not eligible for the service except if the person is a green card holder. After obtaining your green card, you can then apply and see if you will qualify.
For those who fall into the group of people mentioned earlier, the permanent residents who are above 65, the process of enrollment starts 3 months prior to their 65th birthday. It will last for seven months. If such a person already enrolls for social security benefit, they won’t need to take any action. By the day of their 65th birth date, they will be automatically enrolled in the plan A and Plan B of the Medicare.
How much does Medicare premium cost?
To begin with, you must purchase one or two of the plans. When you do, the plan will come with a monthly premium. Below you will find the details about the premiums of each plan so as to guide you in making a choice.
The amount you will pay for this plan is dependent on how much you have been paying into the Medicare taxes over the years. Also, the cost will partially depend on if you will qualify for other extra benefits. Those who have been working in the United States for more than ten years and above sixty-five years old are eligible to receive the premium plan for free. The same benefit applies to other things like the Railroad Retirement Board benefits or Social Security.
So you are not among those who should earn the premium for free? Then you will pay an amount that is dependent on how much you have contributed in quarters to Medicare taxes.
The premiums for plan A
Payment not above 30 quarters in Medicare taxes – $437 per month
Payment between 30 and 39 quarters in Medicare taxes – $240 per month
Most of the times once you pay for plan A, you will have to pay for plan B. Usually, you will pay about $135.50 per month for the standard premium of plan A. This cost will be more than that if you earn a certain amount of income. To know what you have to pay exactly as an earner of a certain amount, check the Medicare website. Finally, you can pay for plan B without paying for plan A.
Two things will determine how much plan D will cost you: your filing status and your income. After you have paid for plan B and A, you must pay for plan D premium in addition.
What is the penalty if I enrolled late?
There is a deadline for payment for plans. Once the time elapses, you will face some penalty which varies on the type of plan you want to purchase. Your monthly plan might increase by 10% if you are buying plan A. if you are buying any of the other two, your fee might increase by a certain amount which will be over the cost as long as you are still using the plan.
Talk to a lawyer
To be eligible for the U.S citizenship, you might go through a lot of stress which can be reduced if you consult a Columbus immigration lawyer. They have the knowledge and expertise to make things easy for you. Ask those who have gotten it how hard it is to get citizenship without a lawyer. You don’t want to go through the same stress. Contact a Columbus immigration lawyer and make things easy for you.
It’s a deadline that’s approaching fast. U.S. Citizenship and Immigration Services (USCIS) receives H-1B visa petitions each year beginning on April 1, and with only 65,000 H-1B visas available, April 1 is the date that those applications must be received by USCIS. Across the U.S., employers are right now determining their H-1B needs for fiscal 2017 and retaining immigration lawyers to ensure that their H-1B visa petitions are on deadline, accurate, and complete.
By using H-1B visas, many employers based in the United States hire international workers for “specialty occupations” that require highly specialized knowledge. The Immigration and Nationality Act of 1965 defines a “specialty occupation” as work requiring specialized knowledge and a bachelor’s degree – or its equivalent – or a postgraduate degree. International workers who may qualify for H-1B visas include but are not limited to engineers, programmers, mathematicians, and research scientists in fields such as robotics and biotechnology. The demand for qualified employees in those fields far exceeds the number of available H-1B visas, so when U.S.-based businesses apply for H-1B visas, they need the advice, insights, and services that only an experienced H-1B visa attorney can offer.
HIGH DEMAND, FIERCE COMPETITION
For the employers who need H-1B visas – and for those who want to learn about H-1B visas – the first thing to know is that the competition for these visas is fierce. For more than a decade, the annual cap on H-1B visas has been 65,000, while another 20,000 H-1B visas are set aside for use exclusively by workers with postgraduate degrees earned from U.S. colleges and universities. Because the demand for H-1B visas surpasses the supply by more than a 3-to-1 ratio, USCIS has now put a “lottery” system in place for the distribution of H-1B visas. In 2015, 233,000 H-1B visa applications were received by USCIS in the first week of April. The deadline for 2016 is looming, so U.S. employers and their immigration attorneys need to begin preparing H-1B visa petitions and gathering the other necessary documents as quickly as possible.
The truth is that H-1B visas are tough – but not impossible – for companies to acquire. U.S.-based employers should engage an experienced immigration attorney to help your company meet the necessary deadlines, to provide precise and comprehensive information, and to help you avoid the errors, missteps, and confusion that keep too many businesses from obtaining the H-1B visas they genuinely need. In other words, an experienced H-1B visa lawyer can help position you for the approval of your H-1B visa applications, and if your petition is not chosen in the H-1B lottery, your immigration lawyer can help you find other acceptable visa options. With April 1 approaching, employers from anywhere in the U.S. can and should arrange at once to consult with an experienced Ohio immigration lawyer.
H-1B visas are provided only to international employees through sponsoring U.S.-based employers. If all other criteria are satisfied, an H-1B work visa is in effect for three years and may be renewed for a second three-year period. Visa holders are not obligated to remain with their first sponsoring employer for the entire three or six years, so long as a new, qualifying U.S. employer sponsors the worker as an H-1B employee.
WHICH COMPANIES? WHICH WORKERS?
Employers should not make the mistake of thinking that H-1B visas only go to companies like Facebook, Google, and Microsoft. Businesses in all parts of the United States apply for and obtain H-1B visas every year. H-1B visa holders enrich not only their neighborhoods but also the nation as a whole by helping businesses create more prospects for new jobs, growth, innovation, and prosperity. International workers who are chosen to receive H-1B visas in April will have those visas in hand in October for the beginning of fiscal 2017. Right now, employers need to determine which international employment candidates are in need of H-1B sponsorship. Some job candidates may be working already in the United States with temporary work visas. Workers who may require H-1B sponsorship include:
Recent international graduates and current international students in Curriculum Practical Training (CPT) or Optional Practical Training (OPT) who will require employer sponsorship when the OPT or CPT expires
Those already holding H-1B visas and working for a cap-exempt employer (a college, a university, a non-profit, or a governmental research agency) who seek work with a cap-subject employer
Candidates with other nonimmigrant work visas who require a change to H-1B status
When an H-1B worker leaves a sponsored position or is terminated, the sponsoring business must notify USCIS as quickly as possible to have the H-1B petition canceled, because the business must pay the worker’s wages while the petition remains in effect. If the employer fires the sponsored employee, the employer must pay for transportation back to the employee’s last place of residence outside of the United States. Sponsoring businesses are not obligated for the return costs for an H-1B employee’s accompanying family members.
U.S. companies hiring international workers must avoid accusations of discrimination. The advice and insights of a good immigration lawyer can help businesses avoid any discrimination allegations. Employers also face possible liability if they show any discriminatory favoritism regarding pay decisions, layoffs, promotions, benefits, or disciplinary actions. The Immigration and Nationality Act forbids discrimination by companies with more than four employees, and the 1964 Civil Rights Act outlaws discrimination based on national origin by businesses with fifteen or more employees.
Employers need to be fully prepared with the help of a good Ohio immigration lawyer when they petition USCIS for H-1B visas. Inadequate documentation will lead to the automatic denial of the visa petition. An H-1B application may be rejected if the sponsoring company does not appear to be a legitimate, real, active U.S.-based business with the ability to hire and compensate an H-1B employee. Employers must present tax returns, financial statements, tax identification numbers, and sometimes more. An H-1B petition may also be denied if the employment offered does not meet the definition of a “specialty occupation.”
Petitioning for any visa is an extremely complicated procedure. For H-1B visas, sponsoring employers must provide a precisely-detailed description of the employment being offered and the work location. If the visa application says that the employee will work at a client’s location, USCIS will want to determine if the employee will actually be working for the sponsoring company – or actually for that company’s client. The sponsor may be asked to produce a contract agreement and/or other evidence that only the sponsor will be the actual employer of an employee working at a client’s job site. Lack of documentation or specificity can result in the quick denial of a visa petition. However, an experienced immigration attorney knows exactly what information and documents will be needed.
H-4 VISAS FOR DEPENDENTS
In most cases, international workers approved for H-1B visas may bring their spouses and dependent children to the United States. Provided they meet all other immigration requirements, spouses and dependent children of H-1B visa holders qualify for H-4 visas to accompany an H-1B employee to the U.S. Since 2015, some H-4 spouses of H-1B visa holders seeking lawful permanent resident status now qualify for work authorization in the United States. Eligible spouses must file Form I-765 (the Application for Employment Authorization) to acquire the Employment Authorization Document (or “EAD,” Form I-766). Upon obtaining an EAD, an H-4 spouse may accept employment in the U.S.
U.S. businesses that employ international workers should know from the start that they must comply with an assortment federal (and sometimes also state and local) immigration and employment laws, rules, and regulations. Several government agencies will have the right to examine your employment files, your job site or sites, and in fact your entire business operation to check on your compliance. USCIS, the Department of Labor, Immigration and Customs Enforcement (or “ICE”), and the U.S. State Department regularly conduct employer compliance investigations. The government is serious about enforcement, so let an experienced immigration lawyer confirm that your own business is compliant or show you what needs to be changed.
THE HELP EMPLOYERS NEED
If an employer is cited or investigated for non-compliance, a good immigration attorney can recommend the best legal strategy and the changes necessary to avoid further trouble in the future. If your company is investigated, cited, or currently appealing an unfavorable ruling or finding from a court or a government agency, your company will require the knowledge and services of a savvy and experienced immigration lawyer.
In the United States, no field of law is more complicated or confusing than immigration law. Moreover, immigration regulations and laws are constantly changing and evolving, so employers will want to place their immigration needs and concerns in the hands of an attorney who focuses exclusively on immigration matters. If you own, manage, or do the hiring for a U.S.-based company that hires international workers, you can obtain help right away from an experienced Ohio immigration attorney. Owners, hiring managers, and international workers themselves can contact an experienced immigration lawyer to have your immigration concerns addressed, your visa questions answered, or to initiate the H-1B visa application procedure. Do not wait. The April 1 H-1B deadline is almost here, so start preparing – and make the call – as quickly as possible.
The naturalization process is one which allows a foreign citizen to become a full fledged United States citizen, granted the same rights and privileges as any natural born citizen, including the right to vote in federal elections, which is something that visa holders and lawful permanent residents can’t do, even if they have been in the United States for a majority of their lives.
Qualifying for Naturalization
In order to qualify for naturalization, a person must be a lawful permanent resident of the United States for at least five years. If the person seeking naturalization is married to a U.S. citizen, then the wait is reduced to just three years. The wait may be substantially reduced if the person seeking naturalization served in the military for a qualifying period of time. A child can be naturalized if the child was born to U.S. citizens on foreign soil, even if the family remains outside of the country for an extended period of time after the child’s birth.
Children Born to Foreign Parents
Children who were born on foreign soil to foreign parents may not need to apply for naturalization because, if the children’s birth or adoptive parents became naturalized U.S. citizens before the child turned 18, then the child may already be considered a U.S. citizen.
English and Civics Testing Requirement
Prior to becoming a naturalized U.S. citizen and taking the Oath of Naturalization, which finalizes the process, the foreign citizen seeking to be naturalized must successfully pass a basic English and civics test administered by U.S. Citizenship and Immigration Services. Certain exemptions to this testing requirement exist for individuals who have been in the United States for a certain number of years and those who are at least a certain age – if a person may qualify for an exemption to the testing requirement, then an attorney can advise the person of this fact and the benefits which the exemption provides.
Other Benefits of Working with an Attorney
Along with getting the most up to date information on testing exemptions which may exist for foreign citizens who are trying to become naturalized U.S. citizens, a person who partners with an experienced immigration and naturalization attorney for help through the naturalization application process receives several major benefits that those who try to apply for naturalization on their own don’t get to enjoy. Benefits like being able to have an experienced legal professional look over an application to ensure it is filled out completely and properly, and having a professional on hand to offer custom tailored advice to a person’s specific immigration related questions..
Prior to Naturalization
Until the naturalization process is finalized, a foreign citizen may still be deported or removed from the United States and sent back to his or her country of origin for violations of major U.S. laws and for violations of certain immigration policies. Only after naturalized citizenship is granted is a former foreign citizen free from the risk of being ordered removed from the country. However, if a naturalization is procured by fraud, then an immigration court may revoke the fraudster’s citizenship and have the person returned to his or her country of origin.
Foreign citizens who wish to hold a job in the United States will need the permission of the government in order to do so. Working as a foreign citizen in the United States without the appropriate documentation puts the foreign citizen at risk of removal / deportation and puts the employer or person who hired the foreign citizen at risk of fines and/or criminal prosecution from the federal government. Generally, foreign citizens from foreign countries who visit the United States on a tourist visa are not allowed to work or conduct any business while in the U.S.
Temporary Work Visas
According to our business immigration lawyers, temporary work visas can be issued to foreign citizens who would like to travel to the United States for work or business but who have no long term intention of remaining in the country. To qualify for these types of work visas, the foreign citizen must secure a position which would qualify for the visa to be issued. Once expired, this type of visa is no longer active and the person must return to his or her country of origin.
Lawful Permanent Resident Status
For foreign citizens who think that they would like to remain in the United States indefinitely, then they will have to apply for permanent resident status in order to be able to stay employed in the United States for an extended period of time. When granted lawful permanent resident status, the foreign citizen is issued a green card stating that he or she is allowed to remain in the country indefinitely and is allowed to enjoy all of the privileges of being a lawful permanent resident.
While lawful permanent resident status will allow a foreign citizen to remain employed and working in the United States, it will not protect the foreign citizen from the risk of deportation, which means that if a lawful permanent resident with a valid green card violates a serious U.S. law or other rule of U.S. immigration policy, no matter how long the person has been in the United States, he or she may be subject to removal / deportation by an immigration court.
Full American Citizenship
The only way to ensure that a foreign born person will not be deported from the United States is if that person becomes a naturalized U.S. citizen. Once a naturalized U.S. citizen, a foreign born person receives the rights and privileges to live, work, and remain in the United States just the same as any person who was born in this country and who received citizenship by birth.
Getting an Attorney to Help
A foreign citizen is required to spend a number of years as a lawful permanent resident before being allowed to apply for naturalization, but an attorney can still provide immediate legal advice on work visa options to foreign citizens who would like to come to the United States to work, whether they plan on becoming eventual lawful permanent residents or they just want to work in the country for a brief period before returning back home.
It is an exciting time for many foreign nationals living in the United States. During the last four months, the EB-2 priority dates for India and China have moved forward over two years. As a result, many employment-based immigrants have been able to file Applications for Adjustment of Status earlier than they ever expected. At times such as this, many forget about the possibility of Visa Bulletin retrogression, the “rolling back” of priority dates.
Visa Bulletin Retrogression is of particular concern for foreign nationals that are intending to or already are married. Spousal concerns can prevent or delay the filing of Adjustments of Status Applications. Such, when combined with Visa Bulletin retrogression can be devastating. As the Department of State has recently stated that Visa Bulletin retrogression is likely to occur soon (See HERE) we thought we would take the opportunity to discuss two common issues that face employment-based Adjustment of Status Applicants with regards to their families:
Delaying Adjustment of Status due to Impending Marriage
United States immigration law permits only pre-existing spouses to immigrate to the United States with the principal employment-based immigrant. That is, a couple must be married before the employment-based immigrant receives their green card. Thus, intending employment-based immigrants sometimes delay filing for Adjustment of Status until after they are married so that their new spouse can immigrate to the United States with them.
Visa Bulletin retrogression can delay the filing of Adjustment of Status in such cases. If, the Visa Bulletin retrogresses before the marriage occurs, the couple will not be able to Adjust Status until the priority date is current again.
For most foreign nationals, the risk of retrogression is worth it. If one marries after they get their green card, they can only bring a spouse to the United States by filing an I-130 Family-Based Immigrant Petition. This process can take years.
Failing to File Due to A Family Member Being Located Abroad
Sometimes spouses of employment based-immigrants are unable to apply for Adjustment of Status due to extended trips outside of the United States. Where retrogression occurs before the spouse can return to the United States and file an Adjustment of Status, the spouse could have trouble reentering the United States.
A spouse abroad can obtain an immigrant visa to enter the United States by “following to join” the principal employment-based immigrant in the United States, that is, applying for an immigrant visa at a consulate. This process can, though, take some time. If retrogression occurs and the principal immigrant’s priority date is no longer current, a consulate won’t be able to issue an immigrant visa. The spouse abroad will have to wait until the priority date is current again.
The inability of a spouse to obtain an immigrant visa can sometimes be circumvented by entering the United States as a non-immigrant, either in a derivative capacity (H-4, L-2, etc.) or in their own right (F-1, H-1B, L-1, etc.), but such cannot be guaranteed. If the principal immigrant the United States cannot maintain their non-immigrant status, no derivative status will be available to the spouse abroad. Further, if the visa bulletin retrogresses after the principal immigrant in the United States receives his or her green card (rather than while the application is still pending), obtaining a nonimmigrant visa for a spouse abroad could be more difficult; consulates will be reluctant to issue some types of non-immigrant visas to those with permanent-resident spouses.
Thus, if retrogression occurs and a spouse abroad cannot obtain a nonimmigrant visa, they will be stranded outside of the United States until the principal immigrant’s priority date becomes current again. This ultimate scenario, while somewhat unlikely and rare, has occurred in the past. If there is a possibility that such might happen with you or a family member, it would be wise to consult with an immigration attorney.
Family issues can complicate the Adjustment of Status process in many ways. Any decisions regarding these issues must be informed ones as to protect and preserve family eligibility for immigration benefits. As such, we at Sam Shihab & Associates, LLC are always happy to provide consultation on such issues.
Ten months after the release of the Nuefeld Memo focusing on the employer-employee relationship aspect of the H-1b application, the U.S. Citizen and Immigration Services appears to have retreated to a more reasonable interpretation of the common law relationship.
Focusing on the correct concept of “Right to Control” rather than the original unsupported position of the “Actual Control”, we find improvement in USCIS adjudication of the H-1b application. Without going through the legal analysis, there are several precautions and practices an employer can follow which will improve the likelihood their H-1b petition is approved.
If you are an employer who files H-1b petitions, one area where consultation with experienced counsel is of particular importance involves the business practices which demonstrate the relationship between the employer and the employee.
An H-1B employee is defined by the Immigration and Nationality Act as an alien “who is coming temporarily to the United States to perform services . . . in a specialty occupation.” Part of the definition for employer is someone who has an “employer-employee relationship . . . as indicated by the fact it may hire, pay, fire, supervise, or otherwise control the work of any such employee.”
As stated above, a memorandum released early this year by USCIS reminded employers that along with providing evidence H-1b beneficiaries are coming to the country temporarily for a specialized job, they must also prove they are a U.S. employer. This is done by demonstrating the relationship – the “right to control” – described above by the INA does, in fact, exist.
In the memorandum the USCIS details how that proof can be established. The USCIS talks at length about employment agreements, services-performed itineraries, contracts between petitioner and clients, job descriptions, etc. The obvious focus of the memo is on the off-site employment and employment involving third parties.
Ultimately there are 11 “control” factors the USCIS considers when determining if a valid employer-employee relationship exists. None of the factors are individually decisive:
Does the petitioner supervise the beneficiary and is such supervision on-site or off-site?
If the supervision is off-site, how does the petitioner maintain such supervision?
Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
Does the petitioner provide the tools needed for to perform duties of employment?
Does the petitioner hire, pay and the have the ability to fire the beneficiary?
Does the petitioner evaluate the work-product of the beneficiary?
Does the petitioner claim the beneficiary for tax purposes?
Does the petitioner provide any type of benefits?
Does the beneficiary use proprietary information in order to perform duties?
Does the beneficiary produce an end-product directly linked to the petitioner’s line of work?
Does the petitioner have the ability to control the manner and means in which the work product is accomplished?
Given the amount of information an employer could potentially have to provide, the only way to avoid needles delays and expense would be to properly modify some of your business practices such that they lends themselves naturally to meeting the required evidentiary documentations needed to obtain approvals today. This is in addition to building a system of compliance to meet other challenging H-1b rules.
To achieve the above goals consultation with experienced counsel is critical. When it comes to policy this nuanced it is always preferable to focus on prevention rather than cure.
The controversy surrounding the 14th Amendment, which specifies that all children born in the United States are automatically U.S. citizens, continues. The discussion in the last 10 years is rooted in the debate over illegal immigration from Mexico and border security. Those who have initiated the movement claim that a large number of illegal immigrants come to the United States specifically to have a child, or a so-called “anchor baby,” so that the parents would be able to remain in the United States due to being the parents of an American citizen. Proponents of overturning the 14th Amendment state that anchor babies often qualify for government assistance, which makes it more difficult to deport their illegal parents. However, there is no evidence to support the claim that deportation of parents of anchor babies is any more difficult than the deportation of other illegal immigrants.
Those that argue for a change in current laws claim that there are a large number of children born to illegal immigrants within United States borders each year. They point to 2008 data that shows that one out of every 12 children born in the United States were born to illegal immigrants, according to a study by Pew Hispanic Center, a nonpartisan research organization. This translates into approximately 340,000 babies who were given automatic U.S. citizenship out of the 4.3 million babies born in the U.S. that year. While the debate continues, we must consider what this may mean for the United States if the 14th Amendment is indeed overturned.
According to the study, as of 2009, more than 75 percent of illegal immigrants in the United States were Latinos. As the law stands now, if the parents of U.S. citizens are found to be in this country illegally, the parents would still be deported to their country of origin. Would the risk of deportation for the entire family actually stifle the high number of unauthorized immigrants who enter the country each year? Possibly. As the law stands now, children of illegal immigrants who were given automatic citizenship have the opportunity to act as a sponsor for family members for entry into the U.S. at the age of 21. If the opportunity of future sponsorship did not exist, some argue that having children in the U.S. would be less attractive. But is this approach Constitutional?
There is no study that shows, however, that changing the 14th Amendment will in fact alter the future data of US born children to foreign born parents. The truth is most parents would like their children born in the US, a country that at the core of its success is the fair and equal treatment of all persons. The concept of having classes of individuals born in the US but in fact are not US citizens flies in the face of many of the basic values we hold so dear to our hearts as Americans.
Currently the majority of Americans oppose changing the 14th Amendment, as 56 percent of Americans are against changing citizenship provisions, according to the Pew Research Center.
One can become a citizen of the United States by being born in the U.S. or one of its territories, or through a process known as naturalization. The process of applying for naturalization has several requirements, which an experienced immigration and naturalization attorney can explain to the applicant in further detail. Below are some of the most common reasons why an application for naturalization would be denied by the United States Citizenship & Immigration Services (USCIS), the agency that reviews such applications.
Naturalization applicants are required to meet eligibility requirements that, if not met, will result in a naturalization denial. For example, applicants must be at least 18 years old and must generally show continuous residence in the United States for the last five years, and continued presence in the U.S. for at least 30 months within those five years. An applicant who leaves the United States for more than a year at a time may be disqualified for failure to show continuous residence.
Applicants are also generally required to show basic proficiency in reading and writing English. A citizenship interview will test fluency in English. The applicant will be asked a series of simple questions regarding basic United States government knowledge. In some cases, reading and writing requirements may be exempted – an immigration attorney can explain to prospective applicants whether or not they qualify for a reading and writing proficiency exemption.
A showing of good moral character will be necessary for individuals who want to apply for U.S. citizenship by naturalization. To determine moral character, naturalization application officials will look into the applicant’s past to see if the person has been convicted of certain crimes or if the applicant has lied to immigration officials before. A finding of questionable moral character will likely result in a naturalization denial.
All male U.S. citizens and certain non-U.S. citizens age 18 to 25 are required to register for Selective Service. The Selective Service System is an agency of the U.S. government that maintains records on those who may be subject to a military draft. Even though a draft has not happened since the Vietnam War, failure to register for Selective Service can result in the loss of various benefits and privileges, including financial assistance from the federal government and the ability to be approved for naturalization.
Proof of residency will be very important in determining a person’s eligibility for naturalization. The law requires the foreign citizen applicant to show that the time spent in the United States was spent legally. If USCIS officials discover discrepancies in a person’s residential history, this will most likely result in a denial for naturalization. Anyone who is worried that discrepancies in residential history will result in a denial should consult an immigration attorney for advice before filling out an application. The attorney, in many cases, will be able to advise the applicant on his or her best options and whether or not the discrepancy is anything that they should be worried about. If the attorney thinks that all is well, then the attorney can help the applicant complete and submit the application for naturalization.
Many permanent residents consider attaining a green card to be the final step in the immigration process. Most green cards are valid for 10 years and can be renewed indefinitely. Consequently, a surprisingly large number of permanent residents renew their green cards for decades and never naturalize or, in other words, become citizens of the United States. While it is true that the green card provides a foreign national with the ability to live and work permanently in the United States, there are a multitude of benefits conferred to U.S. Citizens for which green card holders are not eligible. All permanent residents should be aware of the advantages of U.S. Citizenship and make an informed decision about naturalization.
First, U.S. Citizenship is not a status that needs to be maintained or renewed and, barring the existence of any fraud or misrepresentation in obtaining citizenship, cannot be revoked. Accordingly, U.S. Citizens can travel abroad for extended periods of time without the risk of abandoning their privileges to live and work in the U.S. A U.S. Citizen can even live permanently in another country and return to the U.S. as often or as little as they desire. A naturalized citizen can obtain a U.S. passport and avail themselves of the U.S. Government’s assistance abroad. As U.S. Citizenship cannot be revoked except for fraud or misrepresentation, U.S. citizens are immune from deportation. While it is certainly not assumed that any foreign national would willfully or intentionally violate the law, if placed in such circumstances a green card holder would be deportable whereas a U.S. Citizen would not.
Another set of important citizenship benefits are those involving the political process. A common concern among foreign nationals, including permanent residents, is that they have no input into laws that significantly impact their lives. A naturalized citizen is entitled to vote in local, state and federal elections, as well as be a candidate for and hold most political offices. On average, 630,000 people are naturalized each year and this amounts to just a small percentage of the number of qualified permanent residents. If the eligible population of permanent residents decided to naturalize, the foreign-born U.S. Citizen population would have tremendous voting power and potentially be able to exert great influence over the laws affecting citizens and foreign nationals alike. In addition, U.S. citizens are allowed to apply for and hold certain government jobs for which green card holders are generally not permitted.
Lastly, U.S. Citizens are able to sponsor family members for immigration to the U.S. and, under certain circumstances, have the ability to pass citizenship along to their foreign-born minor children. The immediate family members of U.S. Citizens are not subject to the same visa quotas as the family members of lawful permanent residents, making for faster processing times for relatives of U.S. Citizens. Furthermore, U.S. Citizens can sponsor a greater number of family members for immigration than permanent residents. Overall, these benefits are of monumental importance when trying to keep families together.
It would behoove any permanent resident considering citizenship to apply at their earliest opportunity, as the filing fees and naturalization application process continues to become more cumbersome over time. Ultimately, the benefits of U.S. Citizenship greatly outweigh the presumed inconveniences of the application process. Eligible permanent residents should be encouraged to complete the final step in the immigration process — U.S. Citizenship. If not for themselves and their family members, then for all of the foreign nationals who do not currently have a political voice in the U.S.