UNITED STATES IMMIGRATION FAQS

ANSWERED BY VIRGINIA ATTORNEYS

The following immigration questions are some of the questions our clients ask our Virginia attorneys. We thought it would be helpful to share with you our answers, so that you may be better informed about your options.

If you need the help of an attorney to assist you in Virginia regarding your US immigration case, do not hesitate to contact us. We have client meeting locations in Virginia to better serve you.

• Virgina: Fairfax, Manassas, Lynchburg, Richmond & Virginia Beach.

You can also learn more about the Virginia attorneys who assist clients with immigration matters by visiting our attorneys page.

Immigration – Getting Your Green Card

• Who Oversees Immigration?
• What is a “Green Card?”
• What Are The Steps Involved In Getting A Green Card?
• Are Multiple Sponsors Allowed?
• What Are Permanent Residence Categories?
• What Are The Filing Costs Involved, And What Documentation Do I Need?
• I’m Planning To Marry A U.S. Citizen – What Do I Have To Know?
• What Is The Definition of An Eligible Child Under Immigration Law?
• Can I Sponsor My Parents?
• Are There Any Quotas For Immediate Family Members Of U.S. Citizens?
• How About Extended Family Members?
• What are The Exclusions?
• I Want To Get A Working Visa. Is There A Program For That?
• What Are The Worker Program Categories?
• I Read About The “Green Card Lottery” – What Is It?
• What Is A Refugee? How Do I apply For Asylum?
• What is “Temporary Protected Status?”
• Are There Currently Any Amnesty Programs To Help Me Get A Green Card?
• Can I Leave The Country Once I Get A Green Card?
• How do I Become A United States Citizen? Are There Any Advantages?
• What is “Automatic Citizenship?”
• How Do I Become A Naturalized Citizen?
• Do I Have To Be Fluent In English Before Becoming A Citizen?
• What Else Do I Have To Know Or Watch Out For?
• Do I Have To Take An Oath of Allegiance?
• After I Become A Citizen, What Then?
• What If I’m Denied Naturalization? Can I Re-Apply?
• What About Paying Taxes?
• What is Deportation?
• What Offenses Can Cause A Deportation?
• What Happens If I’m Threatened With Deportation?
• If I’m Deported And Re-Enter The United States, Can I Be Arrested?
• Can a client who is under an order of supervision marry a US Citizen and file for an adjustment of status?
• What is a Request for Deferred Action? What is the benefit of filing for a Deferred Action?
• Can a person with an H1B file a petition for employment for themselves under an EB-2 based on a National Interest Waiver?

Q: Who Oversees Immigration?    (top)

A: Immigration is generally overseen by the U.S. Citizenship and Immigration Services – (USCIS), which was formerly called the INS. This is one of the agencies now under the umbrella of the Department of Homeland Security.

Q: What is a “Green Card?”   (top)

A: The so-called “Green Card” is actually a permanent visa or immigration visa. Its purpose is to grant the holder the privilege of residing and working in the United States on a permanent basis. Valid for ten years from date of issuance, Green Cards can be perpetually renewed, assuming of course the holder abides by United States laws and regulations.

Q: Is Getting A Green Card Difficult?   (top)

A: Legal immigration to the USA and getting a green card is a complex, time consuming, frustrating and often times expensive process – and this is under ideal circumstances.

Q: What Are The Steps Involved In Getting A Green Card?   (top)

A: There are basically three steps involved:

First, the U.S. Citizenship and Immigration Services (USCIS) must approve an immigrant petition for you, which is usually filed by a relative or employer – called a sponsor.

Second, you must obtain a visa number through the Department of State.

Third, after receiving the visa number you then apply for permanent residence status.

To start the immigration process, you as an applicant must have a “sponsor” – a person willing, legally and financially able to petition for your permanent residence status. As noted above, in most cases this is either a relative or an employer.

Once sponsored, Green Card applicants must apply for an immigrant visa at the embassy or consulate in the country where they currently live. The embassy or consulate reviews the application, to ascertain if you fall into one of the admissible categories.

If you as an applicant are already in the United States on a valid, unexpired visa, you may be allowed to stay and apply for a green card directly.

If your application is approved, you will then get an immigrant visa stamped into your passport. You must enter the United States within six months to claim your green card.

Q: Are Multiple Sponsors Allowed?   (top)

A: Yes. You should recognize that it’s entirely legal to have more than one sponsor. The reasons for doing so are rather practical. If your primary sponsor dies, gets deported, or decides not to continue with the application – you always have someone else to fall back on.

Permanent Residence Categories

Q: What Are Permanent Residence Categories?  (top)

A: These are categories listed by the United States government as reasons to grant permanent residence status, and are very specific. If you don’t qualify under at least one of them, your chances of obtaining a green card are basically about zero.

Most categories (except for immediate relatives) have quotas, meaning only a certain number of people per year will be able to obtain a green card under that particular class.

Probably the largest group of green card holders and applicants are:

I – Immediate Relatives of U.S. Citizens

Spouses:

A “spouse” means a lawful husband or wife. By lawful, the marriage must be recognized by the United States as valid. This of course doesn’t mean that the parties must be married within the United States – just that the US government recognizes the country and laws where the marriage took place. (For instance, if a couple had their wedding ceremony in Barbados that would be recognized as valid in the United States.)

If your spouse is outside the United States when your visa petition is approved, your spouse will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa.

If your spouse is legally inside the U.S. when your visa petition is approved, they may use Form I-485 – which adjusts their temporary resident status to that of a lawful permanent resident.

Q: What Are The Filing Costs Involved, And What Documentation Do I Need?  (top)

A: As of July 30^th, 2007 Form I-485 standard filing fees have substantially increased, from $325 beforehand to a now hefty $1,010.

Documents needed to accompany Form I-485:

• Birth certificate
• Copy of passport page with nonimmigrant visa
• 2 Photos. Identical natural color photographs, taken within 30 days of the application. There are very specific rules to adhere to when having these photos taken, including the side of the face to be shown (right side) as well as having the ear visible and not covered by hair or headdress.
• Fingerprints. If you are between the ages of 14 and 75, you must be fingerprinted.
• Medical examination (Form I-693).
• Biographic Information Sheet – Form G-325A. This form must be completed if you are between 14 and 79 years of age.
• Evidence of current immigration status. Submit a copy of your Form I-94, Nonimmigrant Arrival/Departure Record, showing your admission to the U.S. and current status, or other evidence of your status.
• Affidavit of Support (Form I-864).

Q: I’m Planning To Marry A U.S. Citizen – What Do I Have To Know?  (top)

A: If you are planning to marry a United States citizen, your fiancé (male) or fiancée (female) must file a Form I-129F petition on your behalf before you come here to get married.

You must get married within 90 days of entering the United States. If not, you may be subject to deportation. Currently, only heterosexual couples are recognized under the law.

There are also other deadlines, timelines and residency conditions that must be met when applying for permanent residency status for your wife or betrothed. A skilled immigration lawyer will be able to guide you through these various legal requirements.

Children of US Citizens

Q: What Is The Definition of An Eligible Child Under Immigration Law?    (top)

A: Eligible children are defined as being under 21 years of age who are as yet unmarried and who have at least one parent as a United States Citizen.

Unmarried step children also fall under this category if they were under 18 years old when the parents married.

Adoption is also recognized if the adoption took place before the child reached 16 years of age.

Parents of United States Citizens

Q: Can I Sponsor My Parents?  (top)

A: A United States citizen may sponsor their foreign national parents if the “child” sponsoring is 21 years of age or older.

Q: Are There Any Quotas For Immediate Family Members Of U.S. Citizens?  (top)

A: As mentioned above, there’s no quota on the number of green cards issued to immediate relatives of United States citizens. As soon as the paperwork and application process is completed and approved, the green card will be issued.

Q: How About Extended Family Members?   (top)

A: If a family member doesn’t fall within the categories listed above, they’ll be classified under what’s known as a “Preference Category” as described below.

II – Additional Family Members – Preference Categories

Preference categories are limited by quotas. Depending upon when the application was filed and your category status, issuance of a green card can take up to twenty years or more.

Here’s how the immigration law (from the www.uscis.gov website) defines these categories:

• First preference: Unmarried, adult sons and daughters of U.S. citizens. Adult means 21 years of age or older.
• Second Preference: Spouses of lawful permanent residents, their unmarried children (under twenty-one), and the unmarried sons and daughters of lawful permanent residents.
• Third Preference: Married sons and daughters of U.S. Citizens.
• Fourth Preference: Brothers and sisters of adult U.S. Citizens.

Q: What are The Exclusions?  (top)

A: Please take note that grandparents, cousins, aunts, uncles, in-laws, and other extended family members are generally excluded from these preference categories.

Also note that your immigrant unmarried children have a far easier and quicker processing time than their married counterparts. If you expect to sponsor your children, it’s best they wait until getting their green card before marrying.

III – Employees and Workers Program

Q: I Want To Get A Working Visa. Is There A Program For That?   (top)

A: Yes. In fact, current immigration laws make it illegal for American businesses to employ foreign workers in the United States without valid USCIS permission. Here’s an overview of the applicable laws and regulations.

Employers must complete and maintain Form I-9 for all US based foreign workers, verifying the employee’s identity and USCIS documentation.

Generally, these workers categories are reserved for immigrants who possess job skills that cannot be met by “willing, able, qualified U.S. citizens or residents.” Again, there are quotas attached to these applicants

Q: What Are The Worker Program Categories?   (top)

A: The major subcategories as currently defined by the US Department of State are as follows:

Employment First Preference (E1)

All Priority Workers must have a sponsor complete Form I-140, Immigrant Petition for Foreign Worker. This category includes:

• Persons of extraordinary ability in the sciences, arts, education, business, or athletics. Applicants do not have to have a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability. They can file their own petition, rather than through an employer.
• Outstanding professors and researchers with at least three years experience in teaching or research, who are internationally recognized. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition.
• Certain executives and managers who have been employed at least one of the three preceding years by an overseas affiliate, parent, subsidiary, or branch of a U.S. employer. The applicant must be coming to work in a managerial or executive capacity.

Employment Second Preference (E2)

Professionals Holding Advanced Degrees, or Persons of Exceptional Ability in the Arts, Sciences, or Business.

A job offer is required and the U.S. employer must file a petition on behalf of the applicant.

Employment Third Preference (E3)

Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers. All Third Preference applicants require an approved I-140 petition filed by the prospective employer.

Employment Fourth Preference (E4)

This is a “Special Immigrants” group, consisting of 17 different categories, some of which are rather small and arcane – such as “Employees of the Mission in Hong Kong” or former employees of the Panama Canal Company. Religious workers are also included in this class. The list is extensive, and may be found at: http://travel.state.gov/visa/immigrants/types/types_1323.html#other

Employment Fifth Preference (E5)

Investors: Aliens who have the means to invest between $500,000 and $1,000,000 in a commercial enterprise in the United States which will create at least 10 new full-time jobs for U.S. citizens or permanent resident aliens can apply under this category. Of course, the new jobs created can’t be held by the applicant or their immediate family.

IV – The Green Card “Diversity” Lottery

Q: I Read About The “Green Card Lottery” – What Is It?   (top)

A: Each year, the Department of State runs what has become known as the Green Card Lottery. Culled from countries that have had the fewest number of applications over the past several years, this program attempts to promote a diverse ethnic mix among immigrants coming to the United States.

Not all countries are eligible for this lottery, and the number of applicants usually far exceeds the number of visas granted. There are a number of scams that claim they can expedite the process – or put you at the top of the list. Bluntly put – they’re all bogus. Don’t waste your time or your money on them.

The successful applicants are randomly picked by computer – hence the “lottery” aspect the program. Currently 50,000 spots are open per year for this diversity visa program.

V – Refugee Status and Political Asylum

Q: What Is A Refugee? How Do I apply For Asylum?   (top)

A: Basically, these categories applies to people who have experienced persecution, or fear the threat of persecution, based on race, religion, nationality, political opinion, or membership in a particular social group in their own country of origin.

Poverty doesn’t count, neither does general political unrest. The persecution must be individual or specific.

A refugee is someone outside the United States applying for relief. If the person is already in the United States, then they would be considered a political asylum case.

Q: What is “Temporary Protected Status?”   (top)

A: Similar to political asylum is a category known as Temporary Protected Status, or TPS. The big difference here is that it’s not permanent. It provides for temporary relief or safety to affected individuals. A TPS designation lasts for a minimum of 6 months and a maximum of 18 months. The Secretary of Homeland Security may review, extend or eliminate TPS designations as according to law. If your TPS application is approved, you may apply for and receive work authorization.

VI – Amnesty and Other Special Cases

Q: Are There Currently Any Amnesty Programs To Help Me Get A Green Card?  (top)

A: Not really, but there are some minor “loopholes.”

The deadlines for applying for amnesty under the Immigration Reform and Control Act of 1986 (IRCA) and the Nicaraguan Adjustment and Central American Relief Act (NACARA) of 1997 have passed.

However – there are exceptions. If you’d like to see if you qualify under these provisions, we highly suggest you consult with an immigration lawyer first and not go directly to the government. If it comes out that you’re here illegally, even if you innocently believed you weren’t – deportation is in the cards.

Aliens who’ve lived in the United States for more than 10 years may be able to ask for permanent residence. However, other conditions must also be met. Your spouse and/or children must be United States citizens and you must prove they would experience “extraordinary and exceptionally unusual hardship” if you were deported.

Again, it’s highly suggested you first consult with an experienced attorney and not try and apply for this exemption yourself. If the USCIS decides you’re not eligible, you could find yourself being deported in very quick fashion.

It is a bit easier if you’ve been living in the United States since January 1^st, 1972. Then you can apply for permanent status as long as you haven’t had any serious violations of the law or other factors that would bar you from applying for a permanent visa. Again – make sure you consult with an experienced immigration attorney first.

Finally, there have been individual extraordinary cases where Congress has intervened to grant individuals permanent residence – effectively overriding the applicable laws. In all honesty – don’t bank on this ever happening to you.

Q: Can I Leave The Country Once I Get A Green Card?   (top)

A: It’s important to note that permanent residents shouldn’t be out of the United States for longer than one year without express permission from the U.S. Citizenship and Immigration Service. It’s possible to lose your green card status by being on foreign (non USA) soil for more than a year.

Naturalization – Becoming a United States Citizen

Q: How do I Become A United States Citizen? Are There Any Advantages?  (top)

A: A significant number of green card holders choose to become citizens of the United States. This can have several advantages, especially when it comes to sponsoring your other family members.

As a citizen, your spouse (if not a United States citizen), becomes an immediate relative. This changes the waiting period from five years to zero. Your parents would also become immediate relatives and moved up the list of preferences (instead of being off the list altogether). The same applies to your children, who would also move up the list and onto a faster permanent visa track – of course depending upon their age and marital status.

Q: What is “Automatic Citizenship?”  (top)

A: There are two ways that confer automatic citizenship. Under jus soli (right of birthplace), a person becomes a U.S. citizen just by being born within the United States, Puerto Rico, Guam, and the U.S. Virgin Islands. Jus sanguinis (right of blood) confers citizenship upon those outside the United States born to at least one parent (with some minor restrictions) who already is a citizen, or an absolute right if both parents are citizens.

If neither of these two automatic categories are the case, applicants may seek U.S. citizenship through the process of naturalization.

Q: How Do I Become A Naturalized Citizen?   (top)

A: A person applying for citizenship must file an “Application for Naturalization” (Form N-400) and meet certain guidelines.

First, they must be in the United States legally with permanent residence status.

Second, they have to have been residing in the United States for at least 5 years, or 3 years if married to a citizen, or if the applicant currently is or has been a member of the United States Armed Forces. Certain other persons who’ve served the United States military against its enemies may file an application as well.

Third. They must have been present on United States soil for at least 50% of the time that they were legal immigrants, unless engaged in United States military duties.

Fourth, the applicant must be at least 18 years of age. Of course, parents can file at the same time they apply for their underage children.

Q: Do I Have To Be Fluent In English Before Becoming A Citizen?    (top)

A: With some exceptions for the elderly or infirm, a basic knowledge of English literacy, history, politics and government is required.

Q: What Else Do I Have To Know Or Watch Out For?   (top)

A: Immigration courts also look at a person’s moral character. If you are a drunken, double-dealing, child-beating scoundrel – you probably won’t be accepted.

You should also show an attachment to the principles of the United States Constitution and the Bill of Rights.

Q: Do I Have To Take An Oath of Allegiance?  (top)

A: Yes. You also must make an “Oath of Allegiance” to the United States, renouncing your other allegiances, and promising to support the Constitution and protect your new land – by force of arms if necessary.

Here’s the entire oath:

“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.”

Q: After I Become A Citizen, What Then?  (top)

A: As a United States citizen, you are now eligible to carry a United States Passport, vote, hold public office (except for President and Vice President), and enjoy all the protections and rights afforded by the Constitution to its citizens. Any children born to you automatically become citizens, as well as those under the age of 18 under your care and custody.

Denial of Naturalization

Q: What If I’m Denied Naturalization? Can I Re-Apply?  (top)

A: If you are denied naturalization, you have the right to appeal using Form N-336, the “Request for Hearing on a Decision in Naturalization Proceedings under Section 336 of the Act.”

If you were rejected because of your lack of English or American civics skills, then simply reapply when your English and your knowledge of American history and culture has improved.

Taxes

Q: What About Paying Taxes?   (top)

A: It’s been said that nothing is certain except death and taxes. That holds true for permanent residents of the United States as well. If you hold a green card, you are considered a tax resident and subject to the same taxation laws as a citizen. Even if your income comes from sources outside the United States, you must now declare it on your tax forms.

If you are found guilty of purposely evading U.S. taxes, your green card can be revoked and you deported.

Deportation

Q: What is Deportation?  (top)

A: Deportation is a legal action forcibly removing a non-citizen from the United States back to their country of origin or allegiance. Deportation is now the responsibility of the Department of Homeland Security.

Until 1882, there was no deportation law within the United States (not including the odious and subsequently illegal “Alien and Sedition Acts” of 1798.) In 1882, deportation was mainly directed towards Chinese immigrants. In subsequent years, the classes of people subject to deportation has been changed, expanded and enlarged.

A deported alien cannot reenter the United States without special permission from the attorney general.

Q: What Offenses Can Cause A Deportation?  (top)

A: Here is just a sampling of deportable offenses:

• Overstaying A Visa
• Illegal Entry Into The Unites States
• Drug Trafficking
• Crimes Of Moral Turpitude
• Multiple Criminal Convictions
• Felony Convictions, such as murder, voluntary manslaughter, kidnapping, robbery, and aggravated assaults.
• Encouraged or aided other aliens to enter the U.S. illegally
• Engaged in marriage fraud to gain admission to the U.S.
• Tax Evasion

Q: What Happens If I’m Threatened With Deportation?   (top)

A: If you’ve been selected for deportation, you still have the legal right to protest the proceedings.

If served with deportation papers, known as a “Notice to Appear” you’ll be ordered to appear before an Immigration Judge. Among other things, you’ll be informed of:

• The nature of the proceedings.
• The alleged violation of the law,
• The right to have an attorney. and
• Consequences of failing to appear at future scheduled hearings.

The Judge will determine if the grounds for deportation are legal and if the alien in question is eligible for relief from removal.

If an immigrant is slated for immediate deportation, a stay can be obtained by applying to the Board of Immigration Appeals (BIA). If such a stay is requested, and the proper conditions met, the action is considered an emergency and given immediate attention.

There are several categories of relief from forced deportation, including:

• Discretionary relief based upon the particular and individual circumstances, Voluntary departure where the alien voluntarily leaves the country
• Cancellation of Removal available to lawful and qualifying permanent residents and some non-permanent residents
• Asylum

Re-Entering the United States Illegally

Q: If I’m Deported And Re-Enter The United States, Can I Be Arrested?  (top)

A: Illegal entry is a serious offense.

The law applies to any alien who re-enters the United States or is found within the country, without government approval, after having been:

• Denied or excluded admission
• Deported or removed
• Departed from the United States while an order of exclusion, deportation, or removal was still outstanding.

Penalties include fines, imprisonment, or both fines and imprisonment.

Q. Can a client who is under an order of supervision marry a US Citizen and file for an adjustment of status?  (top)

A. The answer to this question is as always fact specific. However, as a general rule, an alien who is under removal proceedings due to deportability, may marry a United States citizen and apply for adjustment of status under the immediate relative category.

Q. What is a Request for Deferred Action? What is the benefit of filing for a Deferred Action?   (top)

A. A request for deferred action is an informal program by USCIS. It grants Immigration and Customs Enforcement (ICE) discretionary authority, before or after a removal proceeding, not to remove the alien. It is likely to be granted only in extreme cases, involving people who are very old or very young, who have serious physical or mental disabilities, who cannot be removed because there is no country to which they can be removed, or because of close family ties in the United States. It might include a person who because of a relatively minor or remote drug conviction cannot obtain permanent resident status.
An Individual in removal proceedings can apply for various immigration benefits, which if granted, provide relief from removal, such as adjustment to permanent resident status, cancellation of removal, and certain waivers of inadmissibility. USCIS provides immigration benefits to people who are entitled to stay in the U.S. on a temporary or permanent basis. These benefits include:

• granting of U.S. citizenship to those who are eligible to naturalize,
• authorizing individuals to reside in the U.S. on a permanent basis, and
• providing aliens with the eligibility to work in the United States.

Q. Can a person with an H1B file a petition for employment for themselves under an EB-2 based on a National Interest Waiver?  (top)

A. There is no specific requirement that the candidate should have awards and should have published articles in order to apply or obtain approval for an NIW petition. However, having awards and articles could make an NIW petition stronger. In order to qualify he should prove that he seeks employment in an area of substantial intrinsic merit and his proposed work will benefit the nation as a whole.

A “National Interest Waiver” (NIW) petition falls into the employment-based immigration second preference category (EB-2). Normally, to file an employment-based second preference petition, a job offer and approved labor certification is required. The U.S. job offer requirement, and thus the labor certification requirement, is waived for the sake of the “national interest” through “National Interest Waiver petition”. “Since the requirement of a job offer is waived, an alien, even if he/she has no employer, may file an NIW petition on behalf of himself/herself, while a U.S. employer may file an NIW on behalf of the alien as well. Since this is an employment based second preference petition, the beneficiary of an NIW must qualify as either an “Advanced Degree Professional” or an “Alien of Exceptional Ability.

SRIS PC – Experienced Virginia Counsel Helping With US Immigration Cases

The Virginia attorneys at SRIS PC are experienced when it comes to immigration and immigration law. Navigating through the many mazes and arcane proceedings of obtaining a green card can be daunting enough for an experienced professional – for the average person it’s often next to impossible.

If you’re seeking permanent or even temporary residence status in the United States, please don’t hesitate to call us.

If you’ve decided to become a naturalized citizen, our lawyers can help there as well – making sure all the paperwork is properly filled out and accurately reported, and filing Writs of Mandamus if your application is being unduly delayed.

If you’re in the precarious position of you or someone close to you having been served deportation papers, you’re going to need advice, representation and defense. Again, at SRIS PC we have attorneys who have been able to halt or even reverse deportation orders.

We’re just a phone call away, at: 888-437-7747. And always remember – no matter what your immigration needs, concerns or problems are – everything you bring to our attention is held in the strictest of confidence.

We don’t report anything you share with us to any federal or state agency. We’re here to help you – and that’s a promise.

Although our lawyers are licensed to handle immigration cases in Virginia & District of Columbia, we only handle US based immigration matters in Virginia & Maryland at the present time.

Our Virginia lawyers and staff who assist clients with immigration law speak the following languages in addition to English: Tamil, Arabic, Hindi, Telugu, French, Spanish, Malaysian, Cantonese & Mandarin.