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Immigration Law

Note:  Immigration law is controlled by federal law, not Arkansas law.  However, with increasing frequency, Arkansas (and other states) is passing laws that are, in effect, an attempt to enforce federal immigration law.  Therefore, sometimes Arkansas "immigration" laws can sometimes have a significant effect upon immigrant and non-immigrants in Arkansas.  An Arkansas immigration lawyer can advise you in more detail of this complicated area of the law.

Family Based Visas / Fiancee Visas

Fathers, daughters, mothers, sons, fiances and other relatives can enter the United States with either an immigrant or non-immigrant visa. There are many options that are available. Parents, spouses and unmarried children under 21 years of age of U.S. Citizens are considered immediate relatives and are not placed under a quota system. The others are placed into preference order which determines who is given priority entry into the United States:

  • First Preference: Unmarried, adult (21 years of age or older) sons and daughters of U.S. citizens.
  • Second Preference: Spouses of lawful permanent residents 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.

This process can take a very long time (several years) depending upon the preference ranking. The most current online visa bulletin will give those who are waiting an idea of how long they must wait for their immigration application or green card to be granted.

For those seeking to bring a fiancee to the United States, a K-1 visa application will allow the fiancee to enter the United States. Both parties must be unmarried, legally divorced or annulled, or widowed. The marriage must take place within 90 days of entry into the United States.

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Employment Based Cases

U.S. immigration law is consciously designed to serve the interests of both employers and workers. There are many avenues through which employers can petition for foreign-born employees. Our immigration laws protect U.S. workers by restricting employment-based immigration to persons whose skills and expertise are otherwise unavailable in the domestic workforce.

A person seeking to permanently enter the U.S. workforce through employer sponsorship is not admissible unless the Department of Labor certifies that he or she will not displace nor adversely affect the wages and working conditions of U.S. workers who are similarly employed. The employer must file an application with DOL establishing that both of these criteria have been met.

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Employment Visas/Labor Certification

Companies that need qualified workers, but are unable to find enough U.S. workers to fill those positions, can use the labor certification process to sponsor workers from other countries. In most cases, these workers have specific medical skills, technical ability and bilingual experience and work in occupations like engineering, medicine, teaching, computer science or research.

It is critical that each application is meticulously prepared, all deadlines are met, all references are verified, data is exact and everything documented is in accordance with all current laws. The types of immigration law work employees and employers may require can include, but is not limited to:

  • PERM Application
  • E-1/E-2 - Treaty Country Investor Visas
  • EB1 - National Interest Waiver, Alien Of Extraordinary Ability, Outstanding Professor Or Researcher, Multinational Executive
  • EB2 - Member Of Profession Holding An Advanced Degree Or Alien Of Exceptional Ability
  • EB3 - Skilled Worker Or Professional
  • EB4 - Any Other Worker
  • EB5 - Immigrant Investor
  • H-2A - Seasonal Worker Visas
  • H-2B - Other Seasonal Work Visas
  • L-1 - Inter-Company Transferees Visas

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Employment Authorization

U.S. employers must check to make sure all employees, regardless of citizenship or national origin, are allowed to work in the United States. If you are not a citizen or a lawful permanent resident, you may need to apply for an Employment Authorization Document (EAD) to prove you may work in the United States.

USCIS issues Employment Authorization Documents (EAD) in the following categories:

  • EAD: This document proves you are allowed to work in the United States.
  • Renewal EAD: You should apply for a renewal EAD six months before your original EAD expires.
  • Replacement EAD: This document replaces a lost, stolen or mutilated EAD. A replacement EAD also replaces an EAD that was issued with incorrect information, such as a misspelled name.
  • Interim EAD: If USCIS does not approve or deny your EAD application within 90 days (within 30 days for an asylum applicant; note: asylum applicants are eligible to file for EADs only after waiting 150 days from the date they filed their properly completed original asylum applications), you may request an interim EAD document.
  • The specific categories that require an Employment Authorization Document include (but are not limited to) asylees and asylum seekers; refugees; students seeking particular types of employment; applicants to adjust to permanent residence status; people in or applying for temporary protected status; fiances of American citizens; and dependents of foreign government officials. Please see Form I-765 (Application for Employment Authorization) for a complete list of the categories of people who must apply for an Employment Authorization Document to be able to work in the United States.
  • If you are a U.S. citizen, you do not need an Employment Authorization Document.
  • If you are a lawful permanent resident or a conditional permanent resident, you do not need an Employment Authorization Document. Your Alien Registration Card proves that you may work in the United States.
  • If you are authorized to work for a specific employer, such as a foreign government, you do not need an Employment Authorization Document. Your passport and your Form I-94 (Arrival-Departure Record) prove that you may work in the United States. Please see 8 CFR 274a.12(b), which provides a full list of the categories of people who do not need to apply for an EAD.

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Permanent Resident

A Permanent Resident is an alien admitted to the United States as a lawful permanent resident. Permanent residents are also commonly referred to as immigrants; however, the Immigration and Nationality Act (INA) broadly defines an immigrant as any alien in the United States, except one legally admitted under specific nonimmigrant categories (INA section 101(a) (15)). An illegal alien who entered the United States without inspection, for example, would be strictly defined as an immigrant under the INA, but is not a permanent resident alien. Lawful permanent residents are legally accorded the privilege of residing permanently in the United States. They may be issued immigrant visas by the Department of State overseas or adjusted to permanent resident status by U.S. Citizenship and Immigration Services in the United States.

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Criminal Deportation/Removal Defense

Immigrants in the United States who have been charged or convicted of a crime can be subsequently placed in deportation or removal proceedings. Since September 30, 1996, with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, (Pub. L. No. 104-208, 110 Stat. 3009 "IIRAIRA"), the rights of aliens in the United States have been severely curtailed when past criminal conduct is a factor. Crimes that previously did not cause immigration consequences can now trigger deportation proceedings against an alien. Crimes as serious as murder, and as minor as shoplifting, can result in deportation.

There are three agencies, which may have jurisdiction or input into a deportation or removal proceeding:

  • USCIS - U.S. Citizenship and Immigration Services (for green cards and citizenship)
  • ICE - U.S. Immigration and Customs Enforcement(for deportations and investigations)
  • CBP - U.S. Customs and Border Protection(for airport and border crossing issues)

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Non-Criminal Deportation/Removal Defense

Deportation (or removal) occurs when an alien is found to have violated certain immigration or criminal laws, consequences being that the alien forfeits his or her right to remain in the U.S., and is usually barred from returning.

If the DHS believes that you should be removed or deported from the United States, or an individual is found "inadmissible" to the United States, the DHS will issue a piece of paper called a "Notice to Appear" or "NTA" which initiates court proceedings to determine if an individual is removable, deportable or inadmissible from the United States. An Immigration Judge presides over these court proceedings which are held at US Immigration Courts across the country. These are formal court hearings and should be taken very seriously as your immigration record may be permanently affected and you can be physically deported from the United States. Only an Immigration Judge can determine if you are removable, deportable or inadmissible and whether you have relief from removal. If the Immigration Judge denies relief, you may appeal to the Board of Immigration Appeals which has jurisdiction over decisions made by Immigration Judges.

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Naturalization

Naturalization is the process by which a foreign person becomes a U.S. citizen. Almost everyone who goes through naturalization must first have held a green card for several years. A naturalized U.S. citizen has virtually the same rights as a native-born American citizen.

Naturalization is the process by which U.S. citizenship is conferred upon a foreign citizen or national after he or she fulfills the requirements established by Congress in the Immigration and Nationality Act (INA). The general requirements for administrative 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;
  • a knowledge and understanding of U.S. history and government;
  • good moral character;
  • attachment to the principles of the U.S. Constitution; and,
  • favorable disposition toward the United States.

 All naturalization applicants must demonstrate good moral character, attachment and favorable disposition. The other naturalization requirements may be modified or waived for certain applicants, such as spouses of U.S. citizens.

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Consular Processing

If an individual is in another country, he or she may apply for a visa or green card in the U.S. embassy of his or her home country. We are able to facilitate all of the paperwork and applications and contact the consular officers to facilitate approval of the application.

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Battered Spouse Petition

Under the Violence Against Women Act (VAWA) passed by Congress in 1994, the spouses and children of United States citizens or lawful permanent residents (LPR) 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.

A VAWA self-petitioner files Form I-360, which replaces the Relative Petition (Form I-130) filed by the spouse. VAWA allows the immigrant to control the process instead of relying on the abusive United States citizen or Lawful Permanent Resident spouse. Any immigrant, male or female, is eligible to self-petition under VAWA if all of the following requirements are met:

  • There is/was a good faith marriage between the immigrant and a United States citizen or Lawful Permanent Resident
  • The marriage is/was legally valid
  • There is/was abuse (physical, emotional, mental, psychological)
  • There is/was joint residence
  • The self-petitioner is a person of good moral character

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H, L, E, Visas

Non-immigrant work visas (H, L, O, P, Q) require a CIS-approved petition from a U.S. sponsor. Treaty-trader or treaty-investor visas (E1/E2) can be applied for directly by the individual as long as he or she is from a country with which the United States has a treaty.

The most common work-related visas are H-1B Visas and L1 Visas. The H-1B is a way to bring foreign-born professionals to the United States for a period of up to six years. A sponsor is required and the employment may only start up when the new employee is in the United States. The L1- Visa is for people working for an employer abroad for one year in a related business entity in a manager, executive or specialized knowledge staff capacity, and who will come to the United States to continue providing services for his or her employer. Visas can include:

  • B1 Temporary visitor for business
  • B2 Temporary visitor for pleasure
  • B1/B2 Temporary visitor for business or pleasure
  • E1 Treaty trader, spouse and children
  • E2 Treaty investor, spouse and children
  • 1B (petition-based) Temporary worker in a specialty occupation
  • H1C (petition-based) Registered nurses
  • H2A (petition-based) Temporary worker performing agricultural services unavailable in the United States
  • H2B (petition-based) Temporary worker performing non-agricultural services unavailable in the United States H3 (petition-based) Industrial trainee
  • h3 (petition-based) Dependent of H1, H2 or H3
  • L1 (petition-based) Intra-company transferee (executive, managerial, and specialized personnel continuing employment with an international firm or corporation)
  • L2 (petition-based) Dependent of L1
  • O1 (petition-based) Aliens with extraordinary ability in sciences, arts, education, business or athletics
  • O2 (petition-based) Aliens accompanying and assisting the above in a professional capacity
  • O3 (petition-based) Dependent of O1 or O2
  • P1 (petition-based) Athletes and entertainers for a specific competition or performance
  • P2 (petition-based) Athletes and entertainers participating in reciprocal exchange program
  • P3 (petition-based) Artists and entertainers performing under a program that is culturally unique
  • P4 (petition-based) Dependent of P1, P2 or P3
  • Q (petition-based) International cultural exchange visitor

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Board of Immigration Appeals/Federal Court Litigation

The Board of Immigration Appeals (BIA or Board) is the highest administrative body for interpreting and applying immigration laws. 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) in a wide variety of proceedings in which the Government of the United States is one party and the other party is either an alien, a citizen or a business. In addition, the Board is responsible for the recognition of organizations and accreditation of representatives requesting permission to practice before DHS, the Immigration Courts and the Board.

Decisions of the Board are binding on all DHS officers and Immigration Judges unless modified or overruled by the Attorney General or a Federal court. All Board decisions are subject to judicial review in the Federal courts. The majority of appeals reaching the Board involve orders of removal and applications for relief from removal. Other cases before the Board include the exclusion of aliens applying for admission to the United States, petitions to classify the status of alien relatives for the issuance of preference immigrant visas, fines imposed upon carriers for the violation of immigration laws, and motions for reopening and reconsideration of decisions previously rendered.

While most immigration matters involve administrative court proceedings at the US Immigration Courts and the Board of Immigration Appeals, federal courts such as the Court of Appeals and the U.S. District Courts have jurisdiction over very significant immigration matters.

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Political Asylum

Political Asylum may be granted to people who are already 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. As of 1996, persons in the United States have one calendar year to apply for political asylum, unless the conditions of the country of persecution change or there are exceptional circumstances.

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Waivers of Inadmissibility

An Application for a Waiver of Inadmissibility is an application for legal entry to the United States made by an individual who is otherwise inadmissible on one or more grounds. The application is submitted to U.S. Citizenship and Immigration Services (USCIS), a Bureau of the U.S. Department of Homeland Security (DHS).

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Temporary Protected Status

Temporary Protected Status (TPS) is a temporary immigration status granted to eligible nationals of designated countries (or parts thereof). In 1990, as part of the Immigration Act of 1990 ("IMMACT"), P.L. 101-649, Congress established a procedure by which the Attorney General may provide TPS to aliens 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. On March 1, 2003, pursuant to the Homeland Security Act of 2002, Public Law 107-296, the authority to designate a country (or part thereof) for TPS, and to extend and terminate TPS designations, was transferred from the Attorney General to the Secretary of Homeland Security. At the same time, responsibility for administering the TPS program was transferred from the former Immigration and Naturalization Service (Service) to U.S. Citizenship and Immigration Services (USCIS), a component of the Department of Homeland Security (DHS).

During the period for which a country has been designated for TPS, TPS beneficiaries may remain in the United States and may obtain work authorization. However, TPS does not lead to permanent resident status. When the Secretary terminates a TPS designation, beneficiaries revert to the same immigration status they maintained before TPS (unless that status had since expired or been terminated) or to any other status they may have acquired while registered for TPS. Accordingly, if an alien had unlawful status prior to receiving TPS and did not obtain any status during the TPS designation, the alien reverts to unlawful status upon the termination of that TPS designation.

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TN Visas

When the North American Free Trade Agreement (NAFTA) was implemented on January 1, 1994, a category for Mexican and Canadian professionals was created to allow for temporary entry into the United States.

Under the NAFTA, Mexican and Canadian professionals are now eligible for Trade NAFTA (TN) status. Under TN status, Mexican and Canadian citizens in certain professions may enter the United States to work for a U.S. company on a temporary basis. Eligible professionals may also work for Mexican and Canadian companies in the United States.

In order to qualify for TN status, the applicant must be intending to be involved in a profession listed in Appendix 1603.D.1 of NAFTA and the applicant must possess the required credentials to be considered a "professional". In most, but not all of the listed professions, a bachelor's degree or better is usually required. However, the list of eligible professions also includes occupations which do not necessarily require a bachelor's degree as a minimum requirement. Examples of these occupations are management consultants, hotel managers, librarians and graphic designers. The requirements for each of these categories appear in Appendix 1603.D.l of NAFTA.

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I-130 Petition

An I-130 is a Petition for Alien Relatives and it applies to mothers, fathers, sisters, brothers and children. Parents, spouses and unmarried children under 21 years of age of U.S. Citizens are considered immediate relatives and are not placed under a quota system. The others are placed into preference order which determines who is given priority entry into the United States:

  • First preference: Unmarried adult (21 years of age or older) sons/daughters of US citizens
  • Second preference: Spouses of lawful permanent residents and 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

This process can take a very long time (several years) depending upon the preference ranking. The most current online visa bulletin will give those who are waiting an idea of how long they must wait for their immigration application or green card to be granted.

 

If you or someone you know in the Little Rock area, throughout the state of Arkansas, or worldwide needs the assistance of an experienced Arkansas Immigration Lawyer, call an Arkansas Immigration Attorney at the Law Offices of Bennett & Williams today at (501) 336-8788, or complete the contact form provided on this site to schedule your initial consultation.

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