Grounds for Inadmissibility

Under Section 212(a) of the Immigration and Nationality Act (INA), various past conduct on the part of a foreign national may render him or her inadmissible to the United States – that is, the foreign national will be barred from entering the United States.   Although there are a large number of potential grounds of inadmissibility under INA 212(a), the following are the most common:
Health Related Grounds:  In general, any foreign national who is determined to have a communicable disease of public health significance is inadmissible to the U.S. Such diseases include, but are not limited to TB, syphilis, and Gonorrhoea.

Criminal and Related Grounds: Criminal conviction of a crime of moral turpitude will render one inadmissible to the United States. Applicants are often distressed to discover that what they consider very minor crimes may lead to a finding of inadmissibility. For example, any crime involving theft, no matter how small the amount, is considered a crime involving moral turpitude.
Multiple Criminal Convictions: Multiple criminal convictions, particularly crimes which might not result in a finding of inadmissibility if only one conviction was involved, may render one inadmissible to the U.S.

Controlled Substance Traffickers: Convicted drug traffickers are inadmissible to the U.S.

Prostitution: Prostitution will render one inadmissible for ten years from the date of the last act of prostitution.

Fraud and Misrepresentation: Any foreign national who, by fraud or wilfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under the INA is inadmissible.

Prior Visa Violators (overstays): If a foreign national has previously been in the United States and violated his or her visa by overstaying the period of lawful admission, he or she is inadmissible for a variable period depending on the length of overstay.

Waiving Inadmissibility

If one of the foregoing or other statutory grounds of inadmissibility apply, the applicant may be eligible for a waiver of inadmissibility. A waiver application may only be filed after a consular officer has found an applicant inadmissible.  Waiver applications are commenced by filing of an I-601 waiver application with the USCIS.

Congress has provided for waivers of grounds of inadmissibility, but has limited the application of these waivers. In general, the waiver provisions which apply to most grounds of inadmissibility frequently encountered in an immigration practice require a determination that the continued denial of the foreign nationals admission to the United States would result in extreme hardship to a U.S. citizen spouse or fiancé(e). Extreme hardship is not specifically defined in the regulations; however, the key term is extreme. The ordinary hardship that would naturally arise out of the separation of spouses is insufficient as a matter of law. Only in cases of great or prospective hardship to the U.S. citizen or permanent resident family member will the bar to admission be removed.

Ife S. Ashabo, B.A., J.D., F.L.C

Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

In most cases, an applicant for citizenship must have been a lawful permanent resident who has continuously resided in the United States for five years immediately preceding his or her application. Where lawful permanent residence was obtained through marriage to a U.S. citizen, only three years of continuous residence immediately preceding the application is required. An absence of six months or more breaks the continuous residence requirement unless the applicant has a reasonable explanation for the absence.

In addition to the continuous residence requirement, the applicant must have been physically present in the United States for at least half of the five to three year he or she was a legal permanent resident.  Furthermore, the applicant must have been a resident for at least three months in the state in which the petition is filed and must be able to speak, read, and write in English.

At the citizenship interview, the applicant will be required to take a short test on the history and political system of the United States. The test may be waived for medical reasons. All citizenship applicants must present proof of having filed tax returns.

Ife S. Ashabo, B.A., J.D., F.L.C

Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

General

The K-1 visa is for foreign nationals who are engaged to a U.S. citizen and wish to marry their U.S. citizen fiancé(e) in the United States. 

Eligibility

To qualify for a K-1 visa you must meet the following criteria:

• You are engaged to a U.S. citizen
• You and your fiancé(e) have met within the previous two years
• You and your fiancé(e) are both legally free to marry (eg. neither you or your fiancé(e) are married to someone else)
• You and your fiancé(e) intend to marry each other within 90 days after your arrival in the U.S.
• Your U.S. citizen fiancé(e) has an income that is 100 percent of the federal poverty guidelines

Children

The foreign national’s children may enter the United States as a K-2 visa-holder. The children have a maximum of six months from the issuance of the K visa to enter the U.S. and must enter the U.S. prior to their 21st birthday.

Procedure

The initial petition will be filed in the U.S. by the U.S. citizen fiancé(e).  Once the petition is approved, the U.S. consulate will contact the foreign national in his or her country of residence. The fiancé(e) may then also apply for employment authorization.  Once married, the foreign spouse may apply for a green card without leaving the United States.

Ife S. Ashabo, B.A., J.D., F.L.C

Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

I. Categories of Immigrants

Only a certain amount of foreign nationals are permitted to obtain permanent resident status each year.  The numerical limitation on how many green cards can be awarded each year is often referred to as a “cap” or a “quota.”

In general, there are two categories of individuals who may become legal permanent residents in the United States, those who may obtain permanent resident status without numerical limitations and those subject to an annual limitation.

II. Immigrants without Limitations

There are two categories of persons who may obtain permanent residence in the United States without being subject to the green card quota: certain relatives of U.S. citizens and returning permanent residents.  These two classes of individuals are briefly described as follows:

1. Quota Exempt Relatives: Quota exempt relatives include spouses of U.S. citizens, unmarried children of U.S. citizens, and parents of a U.S. citizen who is 21 years of age or older.
2. Returning Residents: Permanent residents who are returning to the United States after spending more than a year abroad are not subject to the quota.

IV.  Immigrants Subject to the Green Card Quota

The three main immigrant categories that are subject to the numerical limitation are immigrants who are relatives of U.S. citizens or legal permanent residents, employment based immigrants, and diversity lottery immigrants.

Each of the three categories mentioned above are subject to a worldwide quota – that is, each fiscal year only a certain amount of individuals may receive a green card within each category.

The three categories subject to numerical limitations are further broken down into sub-categories, which are referred to as “preferences.”  Each preference is also subject to a quota as well.

The following is an overview of the numerical limitations for the various category of immigrants that may enter the United States:

Immigrants Subject to the Green Card Quota

General

The first class of individuals who may enter the U.S. as an immigrant are foreign nationals who are family members of a U.S. citizen or legal permanent resident, but do not fall within the quota exempt family member category as described above.

Family Member Quota

The total worldwide limit for immigrants who fall into this category is as follows: 480,000 minus the number of family member immigrants (and children born to permanent residents who are temporarily abroad) who were admitted in the preceding fiscal year, plus any employment-based immigrant visas that were not used in the preceding year.

In any year where the formula described above produces a number less than 226,000, the total amount of visas issued will be no less than 226,000.  Thus, the minimum amount of member green cards that will be issued in any given year will be no less than 226,000.

Family Member Preferences

The amount of family member immigrant visas issued each year are broken down into the following sub-categories and the quota for each sub-category is placed in parenthesis:

1. First preference: Unmarried sons or daughters of U.S. citizens (Quota: approximately 23 400).
2. Second preference: Spouses, children, and the unmarried sons/daughters of lawful permanent residents  (Quota: approximately 114 200)
3. Third preference: Married sons or daughters of U.S. citizens, and their wives/husbands and children (Quota: approximately 23 400)
4. Fourth Preference: Brothers and sisters of U.S. citizens and their spouses and children provided that the U.S. citizen is over 20 years of age  (Quota: approximately 65 000)

Employment-based Immigrants

General

Employment-based immigrants include those with certain occupational skills, certain investors, and miscellaneous others.

Employment-based Immigrant Quota

The annual worldwide limit on employment-based immigrants is 140,000 plus any non-family member visas that were available in the preceding year but were not used.  Thus, the minimum amount employment-based immigrant visas that will be issued in any given year will be no less than 140,000.

Employment-based Immigrant Preferences

The amount of employment immigrant visas issued each year are broken down into the following sub-categories and the quota for each sub-category is placed in parenthesis:

1. Priority Workers: Persons of extraordinary ability in the sciences, arts, education, business, athletics, outstanding professors and researchers, plus some executives and managers of multinational corporations  (28.6% of worldwide quota).
2. High Level Professions: Professionals with graduate degrees (advanced degrees), and persons possessing exceptional ability in the sciences, arts and business  (28.6% of worldwide quota).
3. Skilled Professionals: Professionals holding a university degree, skilled workers with at least two years experience, and other workers whose skills are scarce in the U.S.  (28.6% of worldwide quota).
4. Special Immigrants: Certain religious workers, ministers, certain international organization employees and former U.S. government employees (7.1% of worldwide quota).
5. Investors: Persons who generate jobs for at least 10 unrelated persons by investing capital in a new commercial enterprise in the U.S. The minimum acceptable capital being between $500,000 and one million dollars, depending on the employment rate in the geographic area.  (7.1% of worldwide quota).

Diversity Lottery Immigrants

General

Diversity immigrants are those who may receive a green card because they were born in a country from which the United States has received little immigration in recent years.  Beneficiaries of the diversity lottery program are selected randomly.  The details of how to apply for the program are announced each year by the U.S. Department of State.

Diversity Lottery Immigrant Quota

The annual worldwide limit on foreign nationals who may receive a green card through the diversity lottery program is 55,000.  There diversity lottery program is not broken down into preference categories.

Priority Dates and Visa Bulletin

To further complicate things, each country may only receive a certain portion of the available green cards each year.  Because of these annual limits, the number of persons approved by the USCIS for an immigrant visa can exceed the State Department’s yearly supply of visas.  If there are no more immigrant visas left for the year, you will be put on a waiting list, with a “priority date” established according to the time the petition or labor certification was filed for you.  The length of time you will have to wait depends on how many other people, and how many of your fellow countrymen, have applied for the type of visa you seek, and on the speed with which the State Department can process visa applications. It is not unusual for an immigrant visa to be unavailable for an applicant for many years.  For this reason, temporary (“non-immigrant”) visas are more often than not the first option for foreign nationals seeking to relocate to the United States.

Fortunately, the Department of State has created a visa bulletin for the public.  The visa bulletin allows a foreign national with an approved family preference petition (I-130) or employment preference petition, to see whether their “priority date” is current and whether it is now possible to file the I-485 for their green card.”

Ife S. Ashabo, B.A., J.D., F.L.C

Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

General

In certain circumstances, family member of U.S. citizens or legal permanent residents (“LPRs”) may obtain a green card by virtue of their familial relationship to the U.S. citizen or LPR.  This article provides on overview of the requirements for obtaining a green card through a family member.

Eligibility

To be eligible for a green card by virtue of being a relative of a U.S. citizen or LPR, the following criteria must be met:

• the sponsoring relative must be a U.S. citizen or LPR of the United States and be able to provide documentation proving their status
• the sponsoring relative must prove they are financially able to maintain the prospective green card candidate to 125% of the poverty line
• the sponsoring relative must be able to provide proof of his or her family ties to the foreign national

Relatives who are not subject to the Green Card Quota

There is a numerical limit on how many green cards are issued each fiscal year.  The numerical restriction on the amount of green card that can be obtained each fiscal year is referred to as a “quota” or “cap”.  However, certain individuals are exempt from that quota and thus not subject to the numerical restrictions.  The following foreign nationals are exempt from the green card quota:

• Spouses of U.S. citizens
• Unmarried children of U.S. citizens who are under the age of 21
• Parents of U.S. citizens where the U.S. citizen is 21 years of age or older
• Widows of U.S. citizens (under certain conditions)

Relatives who are subject to the Green Card Quota

Like obtaining a green card through employment, relatives of U.S. citizens or LPRs who are eligible for a green card are categorized by preference.  The preferences for relatives of U.S. citizens/LPRs subject to the green card cap are as follows:

First Preference: Unmarried children of U.S. citizens over 21 years of age and their children.

Second Preference: Spouses of LPRs, their unmarried children (under 21 years of age), and unmarried children of LPRs.

Third Preference: Married children of U.S. citizens, their spouses, and their unmarried children under 21 years of age.

Fourth Preference: The brothers and sisters of U.S. citizens 21 years of age or older and their unmarried children under the age of 21.

Ife S. Ashabo, B.A., J.D., F.L.C

Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

I. Definition of an Immigrant

Under U.S. federal regulations, an immigrant is a foreign national who is authorized to permanently work and reside in the United States.  Immigrants are also referred to as legal permanent residents (“LPRs”), permanent residents, and green card holders.  Immigrants enjoy most of the rights of U.S. citizens, such as the right to work for whomever they wish.  The document which proves one is a permanent resident is often referred to as a green card.   

II. Non-Immigrant vs. Immigrant Status

In the United States, there are two classes of documented non-U.S. citizens, non-immigrants and immigrants.  A non-immigrant is someone who is authorized to enter the U.S. with the intent to stay for a temporary period of time and eventually return to their home country.  As noted above, an immigrant, otherwise known as a permanent resident, is someone who is authorized to stay in the U.S. indefinitely and thus is not required to eventually return to his or her home country. 

III. Visa Ineligibility

Certain individuals are prohibited from entering the U.S.  For example, an individual who has had been convicted of certain crimes may be barred from entering the United States and thus unable to obtain a non-immigrant visa.  Therefore, prior to applying for a particular non-immigrant status, it is important to ensure that you are permitted to enter the U.S.  Form DS-156/DS-160 lists the different categories of persons who by law do not qualify for a non-immigrant visa (though, if you fall within one of these categories you may still be able to enter the U.S. through a waiver of inadmissibility).

Ife S. Ashabo, B.A., J.D., F.L.C

Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

General

An immigrant is a Non-U.S. citizen who is authorized to permanently work and reside in the United States.  Immigrants are also referred to as legal permanent residents, permanent residents, and green card holders.  A green card is the document which proves you are a legal permanent resident.

In most cases, to become a permanent resident you must be sponsored by an employer or family member.  Obtaining permanent residence through employment is a very complicated process that involves a great deal of procedure.  This article provides an overview of how one can obtain a green card through employment.

Eligibility

To obtain permanent residence through employment, you must fall within one of the five categories listed and explained below:

First Preference: Priority Workers (E1)

The priority worker category is a privileged class divided into three subgroups:

Extraordinary Ability: Foreign nationals with extraordinary ability in the sciences, arts, education, business or athletics are eligible for permanent residence through employment. Candidates in this category must provide extensive documentation proving their national and international reputations and are required to have a certain degree of documented recognition in their field of competence.

Outstanding Professors or Researchers: Foreign nationals who are outstanding professors or researchers with at least three years experience in teaching or research and who are internationally recognized may gain permanent residence through employment.
Managers and Executives: Foreign nationals who are managers and executives subject to international transfer to the United States may obtained permanent residence through employment. 

Second Preference: High Level Professionals (E2)

The second preference of foreign nationals who are eligible for a permanent residence is made up of professionals with higher degrees, or persons of exceptional ability in the arts, sciences, or business.  To qualify under the second preference you must fall within one of two categories:

1. Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years of progressive experience in the profession.
2. Persons with exceptional ability in the arts, sciences, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field.

Third Preference: Skilled Professionals (E3)

To be eligible as a third preference candidate you must fall within one of the following categories:

1. Individuals holding a bachelor’s degree and who work in a field that requires such a degree.
2. Skilled workers with at least two years of training and experience and who work in a field that requires at least two years of training and experience.
3. Those capable of performing unskilled labor of a nature which is not temporary or seasonal for which no U.S. workers are available.

Fourth Preference: Special Immigrants

You will be eligible of for a green card as a special immigrant if you fall within any of the following categories:

1. Foreign religious workers.
2. U.S. Government employees working abroad.
3. Retired employees of international organizations.
4. A legal permanent resident or conditional resident who may have the status of a “Returning Resident” after having spent more than 12 months out of the United States.
5. Various other agency specific classes of individuals (eg. Broadcasters in the U.S. employed by the International Broadcasting Bureau of the Broadcasting Board of Governors or a grantee of such organization).

Fifth Preference: Investor Immigrants

You may obtain a green card by investing in the U.S.  The fifth preference essentially permits foreign nationals to buy their way into the U.S.  To qualify as an investor immigrant, candidates must have invested or be actively in the process of investing at least $1,000,000 USD in a company in the U.S. that they will direct and control.  If the investment is made in a new enterprise, the company the immigrant will be starting in the U.S. must create full-time jobs for at least ten U.S. workers (U.S. citizens or other permanent residents).

Alternatively, an investment of $500,000 USD may also be enough if the company is located in a “targeted employment area” designated in the United States. 

 Ife S. Ashabo, B.A., J.D., F.L.C

Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

The immigration process is one that can impact your life significantly.  In most cases one’s immigration matter plays a significant part in one’s life goals.  For example, clients often intend to establish or further their career by working in the United States, or desire to make a new life for themselves by residing in the U.S. permanently.  Thus, the underlying objectives associated with each immigration matter are more often than not a long-term ambition that should be taken seriously.

In light of your immigration matter being of significant importance, it is vital that your case is not mishandled.  There are literally a myriad of consequences that can result from the mishandling of your case due to the absence of adequate legal counsel.  Such consequences include a delay in the processing of your visa application, rejection of your application, criminal penalties imputed to your sponsoring employer, or even banishment from the U.S.

Despite the high stakes that are often involved in U.S. immigration matters, many individuals insist on handling their cases without the assistance of counsel.  The reason for this is that, unlike certain other areas of law, most U.S. immigration matters can be administered through applications to and correspondence with federal agencies.  Thus, not having to actually appear before a judge in a court room makes the immigration process appear that much more manageable.

Another reason prospective immigrants and non-immigrants often elect to handle their own case is because of the accessibility of immigration information on the internet.  Numerous websites and “immigration kits” provide details on the procedure for obtaining visas and other helpful information relating to U.S. immigration.  The problem is these sources of information all too often oversimplify the procedure involved in certain matters or fail to provide critical information.  These sources often give readers the impression that each immigration matter exists in a vacuum and are governed only by the relevant statutory provision that introduced the status in the first place.  However, quite the opposite is true.

For example, a “visa kit” may provide a checklist of criteria that must be met for one to obtain a TN visa, and thus give the impression that if one meets the considerations within the checklist they are eligible for a TN.  However, the kit may not mention that, as a non-immigrant applicant, a prospective TN visa-holder must ensure they are not inadmissible under any of the grounds listed in Form DS-156/160, or that if their children or accompanying spouse is not a citizen of a NAFTA member country they will have to undergo a procedure that is different from what is usually required, or, despite the fact that a passport is not usually a requirement for TN applicants, it is required if you are coming from a country outside of the western hemisphere, or that the cap for Mexican TN applicants has been removed, and so on.  The point being, though certain aspects of U.S. immigration law may be procedure based, and thus involve the compilation and submission of documentation, it is no different from the practice of any other area of law in that involves in-depth knowledge of statutes and relevant legal principles. 

The great irony behind the phenomena of individuals attempting to handle their own U.S. immigration cases without the assistance of counsel lies in the fact that immigration is one of the most complex areas of U.S. federal law.  Below are some quotations from federal court judges that speak to the complexity of U.S. immigration law:

“With only a small degree of hyperbole, the immigration laws have been termed ‘second only to the Internal Revenue Code in complexity.’ A lawyer is often the only person who could thread the labyrinth.” – E. Hull, Without Justice For All 107 (1985).

“Immigration laws bear a “striking resemblance …[to] King Minos’s labyrinth in ancient Crete. The Tax Laws and the Immigration and Nationality Acts are examples we have cited of Congress’s ingenuity in passing statutes certain to accelerate the aging process of judges.” – Lok v. INS,

“Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold.” – Karen Kraushaar from Citizenship and Immigration Services

The complexity of federal statutes that govern U.S. immigration law, and the frequent changes in U.S. immigration rules, are probably the reason most U.S. immigration attorneys focus their practice on immigration exclusively.

It is true that there are cases that could, and probably should, be handled without a lawyer. However, for cases where the attainment of lawful status is of high importance, it is our opinion that the benefit of hiring a lawyer who is an expert in U.S. immigration law outweighs the costs.

Ife S. Ashabo, B.A., J.D., F.L.C

Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

General

The H-2A or H-2B non-immigrant categories are for those entering the United States to perform temporary labor services for one year or less.  This visa is general used to allow seasonal laborers to work in the United States during a harvest period or to engage in other types of agricultural activity.
 
Requirements

• The position the non-immigrant is entering the United States to fill must be a temporary one
• The applicant must not be displacing U.S. workers and the employment cannot adversely affect the wages and working conditions of U.S. workers
• The applicant must come from a country that is a part of the H-2 visa program

Nationals of the following countries are eligible to participate in the H-2A and H-2B program:

Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Ethiopia, Guatemala, Honduras, Indonesia, Ireland, Israel, Jamaica, Japan, Lithuania, Mexico, Moldova, the Netherlands, Nicaragua, New Zealand, Norway, Peru, Philippines, Poland, Romania, Serbia, Slovakia, South Africa, South Korea, Turkey, Ukraine, United Kingdom, and Uruguay.

Length of Stay

Admission may be for no longer than one year. Extensions may be granted for no more than 12 months and for a maximum of 3 years. However, extensions are given only in extraordinary circumstances.

Ife S. Ashabo, B.A., J.D., F.L.C

Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.