Naturalization is the process by which a lawful permanent resident becomes a U.S. citizen. Depending upon how a permanent resident acquired such status, he or she may be eligible to apply for naturalization as a U.S. citizen three or five years after becoming a permanent resident. A naturalized U.S. citizen has virtually the same rights as a native-born U.S. citizen. The U.S. does permit dual citizenship with many countries.
Naturalization is the process by which U.S. citizenship is conferred upon a foreign citizen or national. The general requirements for applicants for naturalization include:
• A period of continuous residence and physical presence in the United States;
• Residence in a particular USCIS District prior to filing;
• An ability to read, write and speak English;
• Good moral character;
• A knowledge and understanding of English and of the history and principles and form of government of the United States (this requirement may be waived in certain circumstances).Applicants must take an oath of allegiance to support the Constitution of the U.S., renounce allegiance to another foreign government, support and defend the Constitution and laws of the U.S. against all enemies, and bear arms on behalf of the U.S. when required by law.
A Permanent Resident is a foreign national who has been admitted to the United States as a lawful permanent resident. Currently, the law states that immigrant visas and the acquisition of permanent resident status is limited to family sponsored immigrants, employment-based immigrants and diversity immigrants. The number of immigrant visas in each category is subject to an annual numeric limitation for nationals of each country.
A U.S. citizen may sponsor his or her fiancé, spouse, married and unmarried child, parent or sibling to come to the U.S. as an immigrant. A permanent resident may only sponsor his or her spouse and unmarried children. The number of immigrant visas in the family-sponsored preference categories is subject to an annual numeric limitation for nationals of each country. The filing date of the immigrant visa petition establishes the priority date for adjustment of status. If there is a visa number available at the time of filing the petition, the foreign national may apply for adjustment of status with his/her spouse and children under 21 years of age. Alternatively, the foreign national may file for adjustment of status after the petition is approved, or after approval the person may chose to undergo consular processing of the immigrant visa at a U.S. consulate abroad.
Immediate relatives, defined as children, spouses and parents of U.S. citizens, are not subject to the limitations. So, if a foreign national is the child of a U.S. citizen, the spouse of a U.S. citizen or the parent of a U.S. citizen over the age of 21 years, the U.S. citizen may sponsor the foreign national and the foreign national may at the same time apply for adjustment of status. If not, the foreign national may fall within one of the four family based immigration preferences, which are in order of preference:
First: Unmarried Sons and Daughters of Citizens.
A. Spouses and Children of Permanent Residents
B. Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents.
Third: Married Sons and Daughters of Citizens.
Fourth: Brothers and Sisters of Adult Citizens
The number of immigrant visas in the employment preference categories is subject to an annual numeric limitation for nationals of each country. The filing date of the immigrant visa petition or in the case of EB-3 Professional or Skilled Worker petitions the labor certification application establishes the priority date for adjustment of status. If there is a visa number available at the time of filing the petition, the foreign national may apply concurrently for adjustment of status with his/her spouse and children under 21 years of age. Alternatively, the foreign national may file for adjustment of status after the petition is approved, or after approval the person may choose to undergo consular processing of the immigrant visa at a U.S. consulate abroad.
In most cases an employer must obtain labor certification for the employment of a foreign national and petition for the individual to obtain an immigrant visa. However, there are some categories that permit a foreign national to self-petition for an immigrant visa. The employment-based preferences are as follows:
First: Priority Workers.
Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
Third: Skilled Workers, Professionals, and Other Workers.
Fourth: Certain Special Immigrants.
Fifth: Employment Creation, reserved for investors in a targeted rural or high unemployment area, and for investors in regional centers.
The employment-based preferences that permit a foreign national to self-petition for an immigrant visa are: EB-1 persons possessing extraordinary ability in the arts, sciences or entertainment; and EB-2 members of the professions holding an advanced degree or as a person of exceptional ability where the foreign national is eligible for a national interest waiver. In addition to the advantage of being able to self-petition in the EB-1 Extraordinary Ability and EB-2 National Interest Waiver category, for many countries the priority date is current.
Labor Certification is administered by the U.S. Department of Labor. It is normally the first step for a foreign national to obtain permanent resident status - a green card – through an employment-based immigrant visa petition. A U.S. employer applies on behalf of the foreign worker and must show that the job offer will not displace an available U.S. worker and that it will not adversely affect the wages or working conditions of similarly employed U.S. workers. Labor certification applications are a pre-requisite for most employment-based petitions, with the exception of the EB-1 category and EB-2 National Interest Waiver petitions. In addition, certain shortage occupations – nurses and physical therapists - have been deemed “pre-certified” and do not require labor certification. Special Handling is available for Labor Certification Applications submitted for College and University Teachers.
A foreign national seeking an immigrant visa in this category must demonstrate extraordinary ability in his or her field and sustained national or international acclaim.
A National Interest Waiver is the waiver of the job offer or labor certification requirement in the Employment Based 2nd preference category. This includes both members of the professions holding advanced degrees and individuals of exceptional ability in the sciences, arts or business. To qualify for a National Interest Waiver, the foreign national must possess a degree of expertise significantly above that ordinarily encountered in his or her field and must demonstrate that his or her work is in an area of substantial intrinsic merit; the effect of the work is national in scope; and, the national interest would be adversely affected if Labor Certification were required.
The third preference employment-based category is used by U.S. employers to sponsor professional workers (for positions which require, at minimum, a bachelor’s degree in a specialized field) and skilled workers (for positions which require, at minimum, at least 2 years of experience). The EB-3 category requires labor certification and a job offer as a pre-requisite for filing the immigrant visa petition.
A U.S. citizen may sponsor his or her spouse of fiancé to come to the U.S. as a non-immigrant. For those who sponsor a fiancé or fiancée, the parties must be unmarried, legally divorced or annulled, or widowed and the marriage must take place within 90 days of the fiancé’s entry into the United States.
Certain employment-based non-immigrant visas (H, L, O, P, Q) require the employer to submit a petition to and obtain approval from the United States Citizenship and Immigration Services (U.S.C.I.S.) before the foreign national may apply for a visa. Foreign nationals may apply for other visas (E, R and TN) at the U.S. Consulate in their country of nationality. The most common employment based nonimmigrant visas are H-1B Visas and L-1 Visas.
An H-1B visa is a nonimmigrant visa available for temporary employment in the United States in a “specialty occupation.” A specialty occupation is one that normally requires a bachelor’s degree in a specialized field. The H-1B petition must be filed by a U.S. employer. To be eligible for an H-1B visa, the position offered must normally require a bachelor’s degree in a specialized field and the foreign national must hold such a degree or its equivalent. H-1B status allows the foreign national to work solely for that employer for a period of up to three years. H-1B status may be extended for an additional period of three years. Except in certain circumstances, a foreign national may spend only six years in H-1B status. If a foreign national changes employers, the new employer must submit a new H-1B petition. It is possible to obtain H-1B visas for both full-time and part-time positions.
L-1A nonimmigrant visas are available for executives and managers of multinational companies seeking to enter the U.S. to work temporarily in executive or managerial capacities for branch offices, affiliates, subsidiaries or parent companies of the foreign entities and L-1B nonimmigrant visas are available for employees of multinational companies who possess specialized knowledge of the business’s products, services or procedures, seeking to enter the U.S. to work temporarily in positions which require such specialized knowledge, for branch offices, affiliates, subsidiaries or parent companies of the foreign entities. L-1A and L-1B visas may initially be approved for three years. However, if an entity has been doing business for less than one year in the U.S., the L-1A will initially be approved for only one year. Extensions of the L-1A visa are available in increments of two years, up to a total of seven years. A foreign national who has been in L-1A and/or H-1B status for a period of seven years may not be readmitted in L-1A status until he or she has resided outside the U.S. for one year. Extensions of the L-1B visa are available in increments of two years, up to a total of five years. A foreign national who has been in L-1B status for a period of five years may not be readmitted in L-1B status until he or she has resided outside the U.S. for one year.
J-1 exchange visitors may be subject to the 2 year foreign residency requirement. In most cases if the foreign national is subject to the requirement it will have been noted on the person’s DS-2019 and/or visa. However, be aware the notations may not always be accurate. If a foreign national is subject to the 2 year foreign residency requirement, the person will be ineligible for an immigrant visa, adjustment of status or to be admitted in H or L status unless the person returns to their home country to fulfill the requirement or obtain a waiver. There are several grounds upon which a waiver may be obtained.
Under the Violence Against Women Act (VAWA) passed by Congress in 1994, the spouses and children of United States citizens or lawful permanent residents may self-petition to obtain lawful permanent residency. The immigration provisions of VAWA allow certain battered immigrants to file for immigration relief without the abuser's assistance or knowledge, in order to seek safety and independence from the abuser.
Adjustment of Status is the process by which a foreign national already in the U.S. becomes a lawful permanent resident of the U.S. A foreign national in the U.S. may apply for adjustment of status at the time of filing an immigrant visa petition if a visa number is available. If a visa number is not available, the individual may file for adjustment of status after the petition is approved. Foreign nationals who do not adjust status in the U.S. may pursue consular processing of the immigrant visa at a U.S. consulate.
If a foreign national is residing in their country of nationality, he or she may apply for an immigrant or nonimmigrant visa at the U.S. Consulate in his or her home country. Attorney Giuseppe (Joe) D'Amata is able to facilitate all of the paperwork and applications and contact the consular officers to facilitate processing of the application.
Lawful Permanent Residents and non-immigrants residing in the United States who are arrested, charged or convicted of a crime are subject to being placed in removal (deportation) proceedings. Since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, (Pub. L. No. 104-208, 110 Stat. 3009 "IIRAIRA") on September 30, 1996, the rights of foreign nationals in the United States have been severely curtailed when criminal conduct is a factor. Crimes that previously did not have immigration consequences may now trigger removal (deportation) proceedings. There are four agencies, which may initiate or have jurisdiction in removal (deportation) proceedings:
• USCIS – U.S. Citizenship and Immigration Services (for green cards and citizenship).
• USICE – U.S. Immigration and Customs Enforcement (for deportations and investigations).
• USCBP – U.S. Customs and Border Protection (for airport and border crossing issues).
• EOIR – Executive Office for Immigration Review (Immigration Court).
A foreign national may be put into removal (deportation) proceedings for a number of reasons, including but not limited to:
• 1 -If you entered the country without being admitted (illegal entry);
• 2 -If you overstayed the period of lawful status;
• 3 -If you worked without employment authorization, or otherwise violated the terms of your visa status; or,
• 4 -If you have been convicted of a certain crime.
If the Department of Homeland Security (DHS) believes that you should be removed (deported) from the United States, or if a foreign national is found "inadmissible" to the United States, DHS will issue a Notice to Appear (NTA) which initiates court proceedings to determine if a foreign national is removable from the United States. An Immigration Judge presides over the proceedings of the Immigration Court. Removal proceedings are formal court hearings and should be taken very seriously as your immigration record may be permanently affected and you can be physically removed (deported) from the United States. Only an Immigration Judge can determine if you are removable and whether you have relief from removal. There are various forms of relief available to eligible foreign nationals, including, political asylum, cancellation of removal, withholding of removal, adjustment of status, and voluntary departure. If the Immigration Judge denies relief from removal the foreign national may appeal to the Board of Immigration Appeals which has jurisdiction over decisions made by Immigration Judges.
The Board of Immigration Appeals (BIA or Board) is the highest administrative body for interpreting and applying the immigration laws of the United States. The Board has been given nationwide jurisdiction to hear appeals from certain decisions rendered by Immigration Judges and by District Directors of the Department of Homeland Security (DHS). Decisions of the Board are binding on all DHS officers and Immigration Judges unless modified or overruled by the Attorney General or the Federal court.
Asylum may be granted to foreign nationals who are in the United States and are unwilling or unable to return to their home country because of persecution or a well-founded fear or persecution on account of race, religion, nationality, membership in a particular social group or political opinion. Foreign nationals have one calendar year from the date of entry to the U.S. to apply for political asylum, unless the conditions of the country of persecution change or there are exceptional circumstances.
Temporary Protected Status (TPS) is available to foreign nationals in the United States who are temporarily unable to safely return to their home country because of ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions. During the period for which a country has been designated for TPS, TPS beneficiaries may remain in the United States and obtain employment authorization. However, TPS does not lead to permanent resident status. When the TPS designation is terminated, beneficiaries revert to the same immigration status they had before obtaining TPS status (unless that status has since expired or been terminated) or to any other status they may have acquired while registered for TPS. Accordingly, if a foreign national was in unlawful status prior to receiving TPS and did not obtain another lawful status during the TPS designation, the foreign national reverts to unlawful status upon the termination of TPS designation.
An Application for a Waiver of Inadmissibility is an application for legal entry to the United States made by a foreign national who is otherwise inadmissible on one or more grounds.
U.S. employers are required to ensure that all employees, regardless of citizenship or national origin, are authorized to work in the United States. If you are not a U.S. citizen or lawful permanent resident, you may be eligible to apply for an Employment Authorization Document (EAD) to establish your authorization to work in the United States.