Immigration Law FAQs
Help and Advice By Berger and Berger
Immigration law and U.S. naturalization processes generate many questions and misconceptions, especially as policies evolve over time. The attorneys of immigration law firm Berger & Berger keep up to date on immigration laws to help their clients achieve their citizenship and immigration goals. They work hard to ensure clients have a full, accurate understanding of what lies ahead.
General naturalization and citizenship
Temporary visas and green cards
Family immigration
Canadian/Mexican immigration
Contact Berger & Berger, your immigration law firm
With offices throughout New York State and in Atlanta, Berger & Berger is ready to help you with your immigration or naturalization issue, including business and individual visas, procedures, citizenship applications, and more. Call the firm's main office at (716) 568-4451 or just use the Quick Contact box on your screen.
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General naturalization and citizenship
What are the eligibility requirements for getting a Permanent Resident Card?
If you want to become an immigrant, you must follow a three-step process:
- U.S. Citizenship and Immigration Services (USCIS) must approve your immigrant petition, which is usually filed by an employer or a relative for you
- The State Department gives you a visa number, even if you are already in the United States. If you receive an immigrant visa number, then an immigrant visa has been assigned to you.
- If you are already in the United States, you may apply to adjust to permanent resident status after a visa number becomes available for you. (If you are outside the United States when an immigrant visa number becomes available for you, you must then go to your local U.S. consulate to complete your processing.)
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What is the difference between citizenship and naturalization?
Naturalization is the process through which an alien can become an American citizen. The process requires an application, an interview with U.S. Citizenship and Immigration Service officials, passing a citizenship test of English and civics, and taking an Oath of Allegiance to the United States.
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How does the Comprehensive Immigration Reform Bill of 2009 impact my ability to become a United States citizen?
This bill could bring sweeping change to immigration. Intended to amend the Immigration and Nationality Act, the bill is designed to—
- Enhance border security and achieve effective immigration enforcement
- Improve detention conditions
- Increase protection during enforcement activities, for instance, providing temporary visas and work authorization for detained workers when they have been targeted by their employers for asserting their rights if they agree to pursue labor claims against those employers
- Reduce long backlogs in family and employment immigrant and non-immigrant visa processing
- Promote family unity in a variety of ways, including reclassifying spouses and children of lawful permanent residents as immediate relatives
- Create the Prevent Unauthorized Migration Visa
- Create a legalization program for qualified undocumented immigrants, their spouses, and their children
- Allow qualified conditional non-immigrants and their spouses and children to apply for lawful permanent resident status (green card) and eventual citizenship
- Increase protections on foreign recruitment and revise existing temporary worker programs
- Encourage citizenship among immigrant communities through a series of inititiatives, including uniform administration of the naturalization exam and encouraging acquisition of the English language
The team at Berger & Berger can answer any questions you have about this bill and how it could relate to your specific immigration and naturalization situation.
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Temporary visas and green cards
How can an alien become a legal permanent resident or green card holder?
If you are an alien, you must first be admitted to the United States as an immigrant to become a legal permanent resident. You can obtain an immigrant visa either through employment or through a family relationship with a U.S. citizen or legal permanent resident.
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How can I enter the visa or green card lottery?
The Visa Office has set up a hotline at 202-331-7199 with recorded information on the visa lottery. Winners are notified by the National Visa Center. Those who are not notified can assume they were not selected and can re-enter the following year.
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Do I need to hire a lawyer to enter the green card lottery?
While there is no requirement to hire an immigration attorney or immigration law consultant, you may feel more secure having a professional with experience in applying for the lottery assist you.
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Family immigration
What is family-based immigration?
Family-based immigration is an immigrant visa classification. This classification allows a foreign national to become a lawful permanent resident through a relative who is a citizen or lawful permanent resident of the United States. The family member who is a U.S. citizen or permanent resident must sponsor the foreign national and show that he or she has sufficient means to financially support the immigrant in the United States.
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What is the difference between an immediate relative petition and a preference petition?
An immediate relative petition can be filed by a U.S. citizen on behalf of a spouse, parent, or child. A preference petition is filed by:
- A U.S. citizen on behalf of a son or daughter
- A legal permanent resident on behalf of a spouse, son or daughter, or child
- An employer on behalf of an employee
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Canadian/Mexican immigration
How does the Trade-NAFTA category affect my ability to become a U.S. citizen?
Creation of the new Trade NAFTA (TN) category resulted in several changes to the prior treatment of Canadian citizens and the creation of new non-immigrant business visa alternatives for Mexican citizens.
The major benefits of TN status to Canadian citizens otherwise eligible for H-1B visa status are the streamlined application procedures at ports of entry, the lack of any limit on the number of extensions of stay or applications for readmission, and the absence of a limit on the number of TN admissions that may be granted. This last benefit becomes most important only if the 65,000 annual cap on H-1B visas is reached. Canadians can apply at the DHS pre-inspection posts at international airports in Canada or at the border.
The benefits of the TN category to Mexican citizens are somewhat reduced due to additional paperwork that is not required of Canadian citizens and the need to apply for a visa at an U.S. Consulate in Mexico.
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Can my current employer classifiy me as a TN professional?
Trade NAFTA status is available only to certain professions. Only a United States employer can file a petition to classify a Mexican citizen as a TN professional, but either a United States or foreign employer may seek to have a Canadian citizen classified as a TN professional.
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Frequently Asked Questions (FAQ’s) Regarding Employer Layoffs
The United States has faced tough times with the ongoing economic recession. Many employers have been forced to make difficult choices when it comes to laying off qualified employees. These choices can go beyond the struggle to find new employment, and can have far reaching immigration effects.
I have an approved labor certification, but was recently laid off. What are my immigration options with my new employer?
Your employer can file for a temporary worker visa (H-1B) if you meet the specialty occupation qualifications set forth in section 214(i)(1) of the Immigration and Nationality Act (hereinafter “INA”). INA § 214(i)(1) grants United States Citizenship and Immigration Services (hereinafter “USCIS”) the authority to approve H-1B petitions for up to three years at a time. INA § 214(i)(1). However, the statute restricts the total amount of time that an individual can be granted H-1B status to a period six years. Id.
Nonetheless, legislation enacted in 2002 permits H-1B nonimmigrants reaching the end of their permitted six year stay to extend beyond the sixth year, as long as a labor certification application has been pending for at least one year. AC-21 § 106(a). Furthermore, USCIS does not require that the labor certification application be filed by the alien’s current employer. Memorandum from Donald Neufeld, Acting Associate Director, Domestic Operations, dated May 30, 2008 (HQ 70/6.2). Instead, the employer filing the H-1B visa extension can differ from the employer who filed the labor certification for the employee. As such, an H-1B can be extended beyond the six year limit even if the employee changes jobs following the qualified labor certification.
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I have an approved I-140, but was recently laid off. What are my immigrations options with my new employer?
Similar to an employee with an approved labor certification, an employee with an approved I-140 petition may file for an H-1B extension beyond the standard six year limit. AC-21 § 106(a). In addition, an employee with an approved I-140 petition can have their H-1B extension approved for a period of three years, rather than the one year extension limited to those employees who only have a labor certification which has been pending for over one year. AC-21 § 104(c).
In order to qualify for a post-sixth year extension using an approved EB-1, EB-2 or EB-3 employment based petition, the employee must not have the ability to adjust their status due to an unavailability of immigrant visas based on per country limits. Id. See also, Memorandum from Donald Neufeld, Acting Associate Director, Domestic Operations, dated May 30, 2008 (HQ 70/6.2). For example, employees who are nationals of India and China with an approved EB-2 preference, as well as, all nationals with an approved EB-3 preference, are permitted to obtain an H-1B extension for up to three years because immigrant visas are unavailable to them. See, Visa Bulletin for December 2009.
Furthermore, the employer who is petitioning for an H-1B extension may be different than the employer who filed the I-140 petition. Therefore, should an employee’s work situation change following completion of the I-140 process, a new employer is permitted to file a post-six year H-1B extension, and ask for three extra years of stay.
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I recently changed jobs, but still wish to obtain my green card. What are my options?
Should you change jobs after completing a labor certification or an I-140, your new employer must begin the green card process once again. USCIS does not allow you to use your previously obtained labor certification or approved I-140 in the event that you change employers. Nevertheless, using the aforementioned post-six year H-1B extension, you will be entitled to extend your H-1B for one year at a time until your new labor certification is completed, and three years at a time following the approval of your new I-140 until visa numbers become current.
If you have any questions regarding H-1B visas, labor certifications, employment based immigrant visas, or other immigration related matters, feel free to contact the staff at Berger and Berger. We can be reached by telephone at (716) 568-4451, or you may visit our immigration help website.
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