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Articles Posted in Immigration Applications

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.

There are several kinds of work visa's available in the United States but perhaps one of the most popular and misunderstood is the H-1B program. H-1B visas are granted to those people who have at least a Bachelor’s degree and who will work in a professional position. A person can have a Bachelor’s degree equivalency in a specialty using his foreign degree or a combination of education and work experience. An H-1B visa has a maximum duration of six years, It is issued for a period of 3 years per instance. It is possible to obtain extensions beyond the maximum period under specific circumstances.

What you need to know about H1B

With the H-1B visa program, workers must secure employment sponsorship before working in the United States. There may be limitations as to the qualification of employers who may hire workers under H-1B visas.

Sponsorships – Workers must be sponsored by an employer. Should the visa holder lose their job, they must find another sponsor or leave the United States. The H-1B visa allows the employee to work for the H-1B sponsoring employer only. He cannot work for another employer.

The US Citizenship and Immigration Services (USCIS) announced on March 15, 2013 that it anticipates that it may receive more than 65,000 cap-subject H-1B petitions and more than 20,000 petitions filed on behalf of individuals with a U.S. Master’s degree or higher between April 1, 2013, and April 5, 2013. This could be the first time since April 2008 that the H-1B cap will require a lottery.

In view of the expected volume and possibility of meeting the cap within the first week of the filing season, USCIS announced that it will temporarily adjusted its current premium processing practice. USCIS provides a premium processing service and guarantees a 15-calendar-day processing time. To facilitate the prioritized data entry, premium processing service will begin on April 15, 2013.

USCIS will continue to accept the premium processing service request and fee filed concurrently with the H-1B petition during the time period that premium processing is unavailable – from April 1 to April 14, 2013. Petitioners may also opt to file under regular processing and upgrade a pending H-1B cap petition to premium processing once a receipt notice is issued. According to USCIS, all requests for premium processing received between April 1, 2013, and April 14, 2013, will be adjudicated when premium processing begins on April 15, 2013.

Asylum is a state of protection a country's government provides to citizens of other countries who are afraid to go home. They may fear retribution for bucking the authorities, threats from racist regimes or political aggressors. The problem may be persecution because of religious beliefs or social affiliations, race, nationality, membership in a particular social group, or political opinion. No matter the reason, a refugee can ask for political asylum from the country they have absconded to.

Anyone who meets the official definition of a refugee can apply for asylum in the United States. Refugees can apply for asylum within one year of arrival into the United States. They may also apply for their spouses and children to join them. The proper forms must be submitted to the United States Department of Immigration to begin the process. Permission to work cannot be granted until asylum proceedings have been in the works for more than 150 days without a response.

Applying for asylum can be scary and hard to prove. But the prospect of returning home and be subjected to further persecution can be even more frightening. An experienced immigration attorney will be able to present your case and qualify you for asylum.

Continuing troubles in Syria and the Sahara region may prompt more people to seek political asylum in the United States this year. People who seek asylum do so to avoid persecution in their countries of residence. Asylum seekers might be harassed, threatened or subjected to physical harm because of their race, religion, nationality or political affiliation.

Even with the threat of persecution due to ethnicity or political beliefs, getting an asylum application approved isn’t a simple endeavor. The system in the United States is complex and can be confusing to navigate. Here’s an example:

Last year, an Ecuadorean journalist, Emilio Palacio, was granted political asylum in the United States after he was sentenced to a three-year prison sentence and ordered to pay a $40 million penalty for a newspaper column he wrote. The opinion piece was about the military’s rescue of the country’s president, Rafael Correa, during a violent police revolt in 2010. In it, Palacio labeled Correa, “The Dictator.”

Navigating the United States immigration process can become a lengthy and complicated process. Maintain your legal status and successfully expedite the application process by following these five tips.

  1. Follow the rules. Whether you have a non-immigrant visa, tourist visa or green card, be sure to know your responsibilities and limitations of your status. Even minor infractions could result in cancellation of your status and eventual removal from the US. For example, if you are staying in the United States as a tourist, getting a job is a violation of your status and resulting in your unlawful presence in the US.
  2. Submit more than one visa petition. If you have more than one family member who can legally submit a visa petition, do so. For example, if your parent and a sibling are both U.S. citizens, have both submit a petition for you. Visa waiting times are long and many things can happen while waiting for your visa priority date to be current. Having petitions filed in multiple categories gives you flexibility and gives you other options in case your situation changes. You could decide to get married, your petitioner might die, or you could over age.
  3. Let the USCIS know if you move It seems like a minor detail, but if you are in the United States for more than 30 days, you must notify U.S. Citizenship and Immigration Services (USCIS) within 10 days if you have a change of address. Each family member must submit a separate notification, either by mail or online.
  4. Be prepared and organized. Immigration processing takes time. Submit applications in advance of your deadline, so that your status does not expire. Keep copies of all applications, paperwork and correspondence to and from USCIS. It's also advisable to send materials by certified mail.
  5. Beware of unreliable advice. Do your own research for your own specific circumstances. Well-intentioned friends may have a lot of advice for you, but each situation is different. If you have questions you can't find answers to, consult an immigration attorney.

The U.S. Census Bureau reports that over 35 million immigrants are living in the United States. If you are one of them, following the appropriate process is key to maintaining your legal status. If you are experiencing difficulty, let Lubiner, Schmidt & Palumbo help.

There is hope after death of a petitioner

(Humanitarian Reinstatement)

Some family-based immigrant petitions take years, even decades, before a visa is issued to the applying immigrant. Because of this prolonged waiting time, it is possible that the petitioner may die before the beneficiary gets his green card. As a rule, Immigration will automatically cancel or revoke an approved petition due to the death of the petitioner.

Fortunately, not all is lost. The beneficiary has some relief available to request reinstatement of the petition. In 2009, the immigration law was amended to allow beneficiaries of approved petitions who are present in the U.S. to proceed with the petition and apply for their green card even after the death of the original petitioner. To be eligible the following factors must be present:

  • The beneficiary is present in the U.S;
  • The petition was approved prior to the death of the petitioner;
  • The beneficiary has a qualifying substitute sponsor.

For those living outside the U.S. at the time the petitioner died, they can request for “humanitarian reinstatement” of the petition. Under 8 C.F.R 205.1(a)(3)(i)(C), the Attorney General will not revoke a family-based petition upon the death of the petitioner where he “determines that for humanitarian reasons revocation would be inappropriate.” The beneficiary will have the burden of showing that the revocation of the petition will be inappropriate on humanitarian reasons.

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