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Articles Posted in Immigration Applications

NIW applicationsA national interest waiver (NIW) petition is an alternative to the more common way of obtaining permanent resident status through employer sponsorship. It falls under the employment-based immigration EB-2 category. National Interest Waivers have several advantages:

  • They allow applicants to waive the labor certification
  • No job offer is required
  • Applicants may self-petition, rather than rely on an employer to apply on their behalf
  • The NIW approval process is a relatively speedy process

However, National Interest Waivers have become much more difficult to obtain since the landmark New York State Department of Transportation case of 1998. In that case, three general requirements were laid out regarding approval of NIW applications: the applicant must seek work in an area of substantial intrinsic merit, the applicant’s work must be national in scope, and the benefits of the applicant’s work must outweigh the national interest of U.S. workers currently involved in the labor certification process.

Area of Substantial Intrinsic Merit

Immigration Fraud LawyerThe immigration attorneys at Lubiner, Schmidt & Palumbo know that the United States has seen an explosion in Chinese immigration in the past decade. This immigration trend is especially prevalent in New York City where the foreign-born Chinese population grew by a third between 2000 and 2011. According to the New York Times, the Chinese immigrant population in New York City is poised to overtake Dominicans as the city’s largest immigrant group.

As the Chinese immigrant population grows, New York City has seen a corresponding increase in Chinese immigrants who are seeking asylum as a means to stay in the United States permanently. In fact, over the past six years, about half of all Chinese immigrant applications for asylum nationwide were filed in New York City.

With this explosion in asylum petitions come allegations that asylum fraud — condoned and even fostered by lawyers, paralegals, and interpreters — has become a veritable industry among the Chinese immigrant population in Chinatown, as well as in Chinese communities in Flushing, Queens, and Sunset Park, Brooklyn.

NJ Immigration AttorneyAt the law firm of Lubiner, Schmidt & Palumbo, LLC we practice immigration law and represent not only small and large businesses, but individuals, as well. If you are dealing with immigration as an individual, the process can be daunting and fraught with obstacles and surprises.

When looking for an immigration attorney, we suggest that you ask your potential counsel some important questions, such as:

What is your experience with immigration law?

If you were granted deferred action for childhood arrivals (DACA) by U.S. Immigration and Customs Enforcement or are a DACA recipient with an employment authorization document (EAD) that will expire in the next 120 days, you must apply for DACA renewal to avoid any lapse in your employment authorization or accrual of unlawful presence in the United States.

If your previous period of deferred action expires before you receive a renewal of deferred action under DACA, you will accrue unlawful presence and will not be authorized to work for any time between the periods of deferred action.

The U.S. Citizenship and Immigration Services (USCIS) has recently posted a notice on its website reminding DACA recipients of the above consequences of failing to submit a request for renewal 120 days before the current period of deferred action expires.

New Jersey Immigration LawyerMany employment based immigrants are exploring the possibility of converting their immigrant visa applications from EB-3 (employment based third category) to EB-2 (employment based second category).

This is due to the lengthy waiting time under the EB-3 category as compared to the EB-2 category. It is projected that the waiting time will not change in the near future.

As per the Visa Bulletin, there is currently a five year waiting time for those with approved immigrant petitions under EB-3 to apply for permanent residency. For those born in China and India, the wait times are longer at 7 years and 9 ½ years, respectively. Meanwhile, the Visa Bulletin shows only a two-year waiting time in the EB-2 category for those born in India and China – and no waiting time for those born in any other country.

The United States Congress established a very complicated system for issuing immigrant visas. Each month the Department of State in Washington, DC prints a visa bulletin, which lists the availability of visas for every country for that particular month. Only a limited number of immigrant visas are generally issued each year. This limitation is called the “quota” and is based on an alien’s country of birth.

For example, an individual born in India is eligible for one of the visas allocated to that country. If that same Indian citizen has become a citizen of another country, for example Canada, he or she is still subject to the Indian quota. This is because our quota system is based on the alien’s country of birth, not the country of citizenship.

The country quota under which an applicant must apply for an immigrant visa is commonly referred to as the alien’s “chargeability”. There are four exceptions to chargeability by place of birth. These exceptions are known as “cross-chargeability”.

U.S. non-citizens are frequently targeted by scam artists who want to extract money and compromising information from them.

The offers of scam artists may sound enticing, and in your desire to save money or take a shortcut in an application process, you may believe their assertions. It's crucial to remain vigilant and skeptical, always asking questions and double-checking any claim. Falling prey to a scam can mean that you'll lose money, experience setbacks in your efforts to remain in the U.S., and, in some cases, face criminal charges and deportation.

False websites. One common scam run by criminals is to set up a website that resembles an actual government website. From there, they may try to get you to submit forms with sensitive information and pay various fees. Make certain that you're on a legitimate U.S. government website; always double-check the URL.

Those who are living in United States or outside of their own country may be eligible to apply for asylum. There are specific requirements to ensure eligibility for seeking asylum and they may be challenging to prove.

Fear due to beliefs or lifestyle

Residents of any country who believe they may be persecuted by their government based on their politics, religion or sexual orientation may be eligible to seek asylum in the United States. These conditions can be unbearable and make it difficult or impossible for a person to remain in their own country.

Fear of persecution by the government

People often seek asylum because they fear the actions of their government. The government is defined as any person in a position of authority within a country including the military and the police. Fears may include torture, imprisonment or a deprivation of privacy or other rights. These fears do not always result in asylum being granted as there are different standards depending on the home country.

There are two specific types of family-based immigration Visas that have slightly different requirements. The categories include a family preference category as well as an immediate relative category. The Immigration and Nationality Act (INA) provides specific guidelines for how family petition visas are to be issued and to whom.

  • Immediate Relative Visas – There are no limits on the number of people who can apply for these types of visas. US citizens may apply for family visas for their spouse, unmarried children under 21, an orphan who was or will be adopted from abroad and a parent of any US citizen over the age of 21.
  • Family Preference Visas – These visas have an annual limit and may be requested by US citizens or in some cases, by lawful permanent residents of the United States. Each of these visa types has specific annual limits under US immigration laws. These visas may be obtained by unmarried children of citizens and their minor children (known as an F1 Visa), spouses, minor children and unmarried children over the age of 21 of legal permanent residents (known as an F2 Visa). Married children of US citizens, their spouses and children may apply for an F3 Visa which is known as "family third preference". Finally, an F4 Visa application may be made for siblings of US citizens over the age of 21 as well as their spouses and minor children. It is important to note that sponsors cannot be aunts, in-laws, grandparents or uncles.

There are special rules for family visas that apply to members of the US military that vary from the standard visa rules. There are also options to include a finance and children born out of wedlock that may apply to your individual case.

When applying for family preference visas that allow only a specific number annually, it is important to file your application even if the quota has been reached. The reason for doing this is that all immigrant visas are issued based on when the petitions were filed. In some cases, the wait may be several years, but if you are not "in line" your application will have to be placed at the end.

With news that the U.S. Citizenship and Immigration Services (USCIS) has already reached the 2014 cap for H-1B visas, a number of people whose employers filed H-1B petitions on their behalf will receive notification that their applications weren't selected in the lottery for further processing and review. If your H-1B petition isn't selected, what other options do you have?

You can re-enroll and continue with your F-1 visa. Depending on your curriculum, you may be entitled to curricular practical training that will allow you to work in the US while in a student status. If you do not intend to continue studying, you may be eligible to extend your employment authorization for 17 months. Students who obtained a degree in the fields of Science, Technology, Engineering and Math (STEM) are entitled to 17 additional months of Optional Practical Training. You should consult your International Student Advisor regarding this extension.

Find another sponsor who is exempt from the H-1B cap. Certain types of employers, such as an institution of higher education and a not-for-profit research group affiliated with a U.S. university, are exempt from the visa cap. These employers can file an H-1B petition for you regardless of the quota situation since they are not covered by the quota.

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