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IMMIGRATION LAW - FREQUENTLY ASKED QUESTIONS

Immigration - FAQs

 

Are you looking for information about U.S. immigration law? our experienced team of immigration attorneys have compiled and answered the most frequently asked questions about this subject In an effort to help you obtain as much information needed as possible. Please read below:

I am a green card holder of the United States. I am currently working in the United Arab Emirates (UAE) and I have been away since 4 months ago. My green card is about to expire next month. Can I renew my green card while I am in the UAE?

Generally, your resident alien card (green card) may not be renewed from overseas.  You must return to the United States and file an application to renew it and must submit your biometrics to the USCIS.  You may depart the U.S. after submitting your biometrics and also request on your application to have the resident alien card sent to the US Embassy in UAE for you to pick up.  Additionally, please be careful about the length of time you spent overseas and your employment overseas.  Generally, a continuous absence from the U.S. for 6 months causes your permanent residency to be abandoned, unless you demonstrate otherwise to the U.S. Customs upon your return. Employment overseas is also considered an adverse factor to maintaining your residency in the U.S.  For additional guidance, see Attorney Shahzad Ahmed's article "Maintaining Your Permanent Residency"

To determine the best option for you, please get a full consultation from an experienced immigration attorney.Back to Immigration FAQs

I recently became engaged to my fiancé in the U.K. What is the fastest way to bring here here in the U.S.?

There are a few options to bring your fiancé to live in the U.S. with you. There is no one option that is right for everyone. There will be some personal considerations that come into play, such as, where do you both and your families want to have the wedding?  With the fiancé petition, the marriage will occur after she enters the U.S.  With the marriage petition, you would marry her overseas. The fiancé petition requires that you must have had a meeting with your fiancé within the last two years.  Some exceptions apply.  Under the fiancé visa option, once your fiance enters the U.S., then you must marry her within ninety (90) days.  Then she would file to adjust her status to a lawful permanent resident (green card holder). By contrast, under the marriage petition process, after marrying overseas, you would start the petition process.  And your spouse will enter as a lawful permanent resident, so there is no further processing to do once she enters the U.S.

To determine the best option for you, please get a full consultation from an experienced immigration attorney.Back to Immigration FAQs

My brother in India runs a successful company for software engineering. He employs over 12 workers. He wants to start operations in the U.S. What is the best way to do this?

Your brother should explore the possibility the L-1 Visa. L-1 visa is one of the most common non-immigrant work-related visas. It is available for foreign national executives, managers and other persons with specialized knowledge, who have been working for a non-U.S. company and the employer seeks to transfer to a U.S. company. The U.S. company must be the parent company, subsidiary, branch, affiliate or joint venture partners of the foreign company but does not have to engage in the same line of business as the foreign company. Your brother will need to establish such an entity in the U.S. Feel free to review the main requirements of the L-1.Back to Immigration FAQs

I need an E2 visa for me, my wife and my two young kids. I am buying a gas station in Orlando. It is worth $200k. Is this sufficient for an E-2?

If you seek to invest a substantial amount in a U.S. business enterprise, which you would also develop and direct, then you may qualify for the non-immigrant E-2 Treaty Investor Visa.

Here are the main requirements:

  • The investor, either a real or corporate person, must be a national of a treaty country;
  • The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise;
  • The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment;
  • The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the United States;
  • The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed; and
  • The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify. Although the regulations do not define "substantial," they do state that the business must be more than just to provide a minimal living for the investor and his family. Back to Immigration FAQs

I have read about the STEM Act legislation which would allow certain professionals to apply for permanent residency. Will a qualified person be able to adjust status in the United States based upon this if he holds a master’s degree in science, technology, engineering or mathematics?

The "STEM Jobs Act" is a bill which passed the U.S. House of Representatives in late 2012, but has not been approved by the Senate or signed into law. The bill seeks to grant as many as 55,000 visas to foreign nationals with advanced degrees from U.S. universities in the fields of science, technology, engineering, and math (STEM). The goal is to prevent the “brain drain” to competing countries and instead, to retain the professionals we train in our country.

If this bill were to become law, then this could be a boon to the U.S. economy since such professionals use innovation and start businesses. We have not seen from the bill however that it provides for adjustment of status for those who are currently out of status. Moreover, this legislation does not provide any comprehensive immigration reform. For news about the plans for immigration reform announced by President Obama on January 29, 2013, stay tuned further to our newsletters.Back to Immigration FAQs

I am a citizen of the UK and I have a visa waiver. I come to the U.S. every now and then for my company. The US company charges its US customers for the project work I do on behalf of my engineering company while in the US. The US company then pays the UK company to pay me. Am I able to conduct such transactions legally as a visitor?

There is a case decision called Matter of Hira, under which a foreign tailor was coming to the U.S. on a B-1 business visitor visa to take measurements of customers, and then returned abroad to design the clothes. The decision stated that this was an appropriate B-1 activity, because the principal place of business and the actual place of accrual of profits, if any, was in the foreign.

In your case, since the activities that are incidental to work occurring principally within the United States, it appears to me that this is an improper use of the visitor visa or visa waiver. This is my initial opinion given the limited known facts of your case. There are some employment and business visa options which are worth considering. Feel free to contact us for a full evaluation.Back to Immigration FAQs

My son is eligible to file for deferred action as someone who arrived as a child. Is there a deadline to file for this?

As of the date of this answer, there is no legal deadline to file for Deferred Action for Childhood Arrivals (DACA). Further, you and your son should consult with an experienced immigration attorney and then make an informed decision about whether he should apply. In some cases, it is best to not apply. Below is the DHS’ published number of DACA cases processed so far:

1. Intake Number of requests accepted for processing  
179,794 
2. Biometrics Number of biometric services appointments scheduled
158,408
3. Case Review Number of requests under review
 6,416
4. Approved Number of requests approved
4,591

Data represents period August 15 - October 10, 2012Back to Immigration FAQs

I got my residency based on a petition from my brother, a U.S. citizen. When I had my immigrant visa interview at the Embassy, my daughter had aged out because she had already turned 21 years old. What can I do to have her join us in the U.S.?

One of the most heartbreaking outcomes in the U.S. immigration process is the separation of a child from his or her parent caused by "aging-out". The first thing we need to do is to review your case and confirm whether your daughter is protected from aging out under the Child Status Protection Act (CSPA) formula. (Sometimes an Embassy may overlook this point or misapply the formula.) If she isn't protected under the CSPA, then as an alternative, we need to explore other options for her, i.e. family petition from you, employment visa, business visa, etc. Please discuss these options with an experienced immigration attorney.Back to Immigration FAQs

I have been in the U.S. since I was 2 years old. I turned 31 before the DACA policy was implemented and I have not filed my application for Deferred Action for Childhood Arrival yet. I read that the application had to be filed before I turned 31. Is there anyway I can get around this problem?

According to the recent publication by the DHS, you must have been under the age of 31 on June 15, 2012. Thus it appears that your age qualifies. Of course, you must still meet all the other requirements. In order to review the basic criteria, please see below.Back to Immigration FAQs

I am a realtor in the Central Florida area. Two of my clients wish to purchase a residence here and secure their immigration status for them and their children. Can my clients purchase real estate in order to get status here in the U.S.?

Yours is a very good question and a popular one faced by many realtors. In our seminar, "Real Estate and Business Solutions for your Foreign Clients," we addressed this very issue. Generally, the U.S. immigration law does not provide legal status on the basis of a real estate purchase alone. However, it does permit an investment in a U.S. business enterprise as a basis for visa status. Thus for example, while the purchase of an undeveloped land, or a house for your own residence, may not qualify, investing in a condominium project may qualify.

Further, there are several business visa categories and each one has its own requirements. In order to determine which one is best for your client, it is important to consult with an experienced immigration attorney.Back to Immigration FAQs

I came to the United States in 2004 as a visitor. My brother, who is a U.S. citizen, petitioned for me in 2008. This petition has already been approved. Can I apply to adjust my status?

The approval of your brother's petition is the first step to adjusting your status. The approval merely signifies the validity of your familial relationship with your brother. It does not grant you any status. As for the next step, you must apply to adjust your status. To be eligible for this, among other requirements, your brother's petition must reach its "priority date." You can monitor the priority date of your petition at the U.S. Department of State visa bulletin.  Our newsletter provides a link to that website. To discuss alternative options, please consult with an experienced immigration attorney. You are also welcome to call us to discuss your matter in detail.Back to Immigration FAQs

My brother lives in the UK with his wife and children. He owns and manages a business. He would like to invest in the US and possibly relocate here. He is looking into investing in real estate. But he has been told that he must invest half a million dollars for the EB-5 Visa? Is there any other option?

Your brother does have other options besides the EB-5 Visa, which requires $500,000 or $1,000,000 investment, depending on the type of targeted business. In order to classify a foreigner for a possible business visa, he or she must meet the specific requirements of that visa.

Thus, for example if your brother seeks to invest a substantial amount in a U.S. business enterprise, which he seeks to develop and direct, then he may qualify for the non-immigrant E-2 Treaty Investor Visa. Although the regulations do not define "substantial,"; they do state that the business must be more than just to provide a minimal living for the investor and his family. Thus, even with an investment of much less than $500,000, a person may qualify for an investor visa.

If he seeks to open a U.S. office of the foreign company and to transfer himself as an Executive, Manager, or Employee of Specialized Knowledge, to this U.S. office, then he may qualify for the non-immigrant L-1 visa as an Intra-company Transferee.

Under the current rules, purchasing a real property does not, in and of itself, provide a status in the United Status. However, treatment of a property as a business investment, if structured properly, may qualify.

The above are some of the Visa options available. For a full evaluation of the possibilities, feel free to contact us.Back to Immigration FAQs

 

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