Question and Answers

Month: November 2010 (Page 2 of 3)

deferred action : Immigration Law Answers Blog

Surviving spouses and their qualifying children, whose U.S. citizen spouses died before the second anniversary of marriage, are eligible to request deferred action. Deferred action is filed with U.S. Citizenship and Immigration Services (USCIS) and once granted it allows surviving spouses and children to remain in the United States for a temporary authorized period of time (two years for this program) without being removed from the United States during that authorized time. Once granted deferred action, the applicant is also eligible to apply for employment authorization (filed on Form I-765) and travel authorization (filed on Form I-131).   Deferred action does not eliminate any period of unlawful presence that accrued before it was granted; it does not convey or imply any waivers of inadmissibility that may exist; and it does not confer or alter any immigration status. However, deferred action does allow the applicant to remain in the United States for two years under this program. During the two years that deferred action is in effect, no additional unlawful presence accrues.  

In order to qualify for this program, the surviving spouse must:

  • have been married less than two years to the U.S. citizen at the time of the U.S. spouses’ death;
  • did not remarry; and
  • be currently residing in the United States.

The qualifying children of the surviving spouses that qualify under the program must be:

  • younger than 21 years old (at the time the request for deferred action was submitted or Form I-130 was filed on their behalf as an immediate relative);
  • unmarried; and
  • residing in the United States.

  Deferred action is filed on Form I-360 at the Vermont Service Center. It is important to file Form I-360 with the appropriate filing fee of $375 and the supporting documentation.   If the U.S. citizen spouse died after being married for two years at the time of the U.S. citizen’s death, then the widow(er) of a U.S. citizen is not covered by the deferred action program. However, the widow(er) is eligible to self-petition as an immediate relative as long as Form I-360 is filed within two years after the date of death.  

For more information on Deferred Action for surviving spouses and qualifying children of deceased U.S. citizens, please call us at 214-999-9999

Three Types of Site Visits : Immigration Law Answers Blog

Posted on November 25, 2009 by Robert A. Kraft

The Chief of Staff of U.S. Citizenship and Immigration Service’s (USCIS) Fraud Detection and National Security (FDNS) office explained three different types of site visits being conducted by USCIS.

  • Risk Assessment Program Fraud Study: program is part of a study to help design profiles of potential fraud. Family-based petitions or employment-based petitions once approved are randomly selected. 
  • Targeted Site Visits: this visit is to ask questions when fraud is suspected. Advance notice of visit is given. 
  • Administrative Site Visits: for religious worker and H-1B programs. Specific questions generally regarding the beneficiary’s job duties as stated in the petition and whether the beneficiary is receiving the wage as stated on the petition.

More information on the site visits is available at

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What does 'No Employment Restrictions' mean on an EAD card? : Immigration Law Answers Blog

Home > Questions We Get > What does ‘No Employment Restrictions’ mean on an EAD card?

Q: On my EAD card, it says that there are no employment restrictions. Does this mean that I can be self employed? I am married to a US citizen and am now waiting for my conditional residency interview.

A: If you are a green card holder, then you are able to engage in self-employment and that is why your EAD card states that there are no restrictions on your employment.

H-1B Cap Petitions for Fiscal Year 2010 Not Reached Yet : Immigration Law Answers Blog

Posted on July 9, 2009 by Robert A. Kraft

As of July 3, 2009, approximately 45,000 H-1B cap-subject petitions have been received by U.S. Citizenship and Immigration Services (USCIS) and counted towards the H-1B cap. Approximately 20,000 petitions qualifying for the advanced degree cap exemption have been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits.  

The cap count for H-1B fiscal year 2010 is available at

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Religious Workers : Immigration Law Answers Blog

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Posted on September 24, 2009 by Robert A. Kraft

The U.S Department of State (DOS) has advised that there are no more employment-based visa numbers available for fiscal year 2009, which concludes September 30, 2009. This affects all employment based categories, but particularly applicants in the employment-based non-ministerial fourth category (EB-4). The EB-4 non-ministerial category includes religious occupation, vocation and professional categories (but not the ministerial category).

The non-ministerial EB-4 category is set to expire September 30, 2009 and individuals in this category must have their adjustment of status applications approved or if they applied via consular processing, they must be admitted into the United States by midnight by September 30, 2009. Unless Congress extends the sunset provision, individuals in the EB-4 non-ministerial category are unable to file Form I-485 Adjustment of Status Applications or consular processing applications after September 30, 2009.

While the I-360 religious worker petitions (ministerial and non-ministerial categories) may still be filed before September 30, 2009, given the unavailability of visas in the EB-4 category the month of September, the Applications to Adjust Status (Form I-485) or applications for consular processing will not be accepted this month. Thus, adjustment of status applications that remained pending will not be approved unless a visa number had already been captured.  

Individuals in the EB-4 ministerial category are eligible to file Adjustment of Status applications until October 1, 2009, when visas in the EB-4 category become available. Please visit the visa bulletin available at the DOS’s Web site.


Posted on August 18, 2009 by Robert A. Kraft

The U.S. Department of State has released its September 2009 Visa Bulletin.   For the month of September 2009, the visa bulletin displays unavailable visas for the employment-based category – third preference category, other workers, fourth preference category, and certain religious workers. Special Immigrant Religious Workers would be categorized under the employment-based fourth preference category. Recently, U.S. Citizenship and Immigration Service (USCIS) began accepting concurrent filing of Form I-360 Religious Worker Petition and Form I-485 Adjustment of Status Application pursuant to the district court’s final order under Ruiz-Diaz v. United States. Pursuant to the order, individuals who file Form I-485 based on a pending Special Immigrant Religious Worker Petitions (Form I-360) or file concurrent I-360 and Form I-485 on or before September 9, 2009 would receive protection from the accrual of any unlawful presence and unauthorized employment that began, up until September 9, 2009.  

Under the September 2009 visa bulletin, beginning September 1, 2009, there will be no visas available for the special immigrant religious worker category – employment-based 4th preference category. It is vital that all pending or approved special immigrant religious worker petitions file their adjustment of status applications before August 31, 2009. USCIS will reject any adjustment of status applications based on a pending or approved Form I-360 seeking special immigrant religious worker classification filed on or after September 1, 2009. More information is available at


Call Kraft & Associates at 214-999-9999 and we will answer your questions regarding adjustment of status to permanent residence based on a Special Immigrant Religious Workers Petition.

Posted on August 17, 2009 by Robert A. Kraft

A petitioner who sponsored a foreign national based on a temporary religious worker (R-1) visa is required to notify U.S. Citizenship and Immigration Services (USCIS) within 14 days if the R-1 beneficiary is working less than the required number of hours, or the beneficiary was terminated before the expiration of his or her authorized stay.  

The notification must include the following information:

  • Employer’s information (name, address, telephone number, and FIEN associated with employer, if available);
  • R-1 beneficiary’s information (name, address, telephone number, and FEIN associated with employer;
  • USCIS receipt number of the approved R-1 petition.

Reason for the notification:

  • R-1 beneficiary working less than the required number of hours; or
  • R-1 beneficiary has been terminated before the authorized stay.

Employers can notify USCIS via e-mail or via letter mailed to the California Service Center. More information is available at the USCIS Web site.  

Kraft & Associates will answer your R-1 questions. Call us at 214-999-9999.

Posted on July 6, 2009 by Robert A. Kraft

With the recent implementation by U.S. Citizenship and Immigration Service (USCIS) allowing concurrent filing of Form I-360 Religious Worker Petition and Form I-485 Adjustment of Status Application, most applicants want to know what documents to submit with an adjustment of status (AOS) application.

Persons with a pending I-360 religious worker petition are now eligible to file an AOS application before September 9, 2009. The AOS application is used by persons who are in the United States to apply with USCIS to adjust to permanent resident status.

Along with the Adjustment of Status Application on Form I-485, one must remember to submit:

  • a copy of the I-360 receipt notice,
  • two passport style photos,
  • a copy of the applicant’s passport,
  • a copy of the applicant’s birth certificate (along with a certified English translation if the document is not in English), and
  • a medical examination report performed by a designated civil surgeon.

If an AOS applicant has ever been arrested then a court-certified copy of all arrest records and the final disposition of the case is required (excluding traffic tickets).

Individuals between the ages of 14-79 are also required to submit a Biographic Information Sheet on Form G-325A.

The most important thing to remember before sending the AOS application is the filing fee! Do NOT forget to submit a check or money order to the U.S. Department of Homeland Security in the amount of $1010. No additional fee is required for Form I-765 Employment Authorization Application and for Advance Parole on Form I-131 if filing with an AOS application.  

Call us at 214-999-9999 and we will be happy to answer your questions.

Posted on May 19, 2009 by Robert A. Kraft

On March 20, 2009, President Obama signed Public Law 111-9 extending the non-minister special immigrant worker program through September 29, 2009. The program, which had expired on March 6, 2009, includes professional or non-professional capacities within a religious vocation or occupation.

Religious workers seeking to file in professional or non-professional capacities within a religious vocation or occupation must file their special immigrant petitions before September 29, 2009. For more information on the non-minister special immigrant religious worker program, please call us at 214-999-9999.

Posted on December 22, 2007 by Robert A. Kraft

A religious organization in the United States may sponsor an individual from another country who has been a member of a religious denomination for two years immediately preceding the filing of the application. If the appropriate Petition and supporting documentation are submitted, the individual may qualify for a nonimmigrant R visa. If the individual is the United States, the religious organization must file Form I-129 Petition for a Nonimmigrant Worker, along with the R Classification Supplement in the United States. If the individual’s spouse and children are accompanying or following to join him or her, then Form I-539 should be filed with the I-129 Petition.

The petition must be supported with documentation establishing that the individual seeks to enter the United States solely for the purpose to:   1) carry on the vocation of a minister of that religious organization; or    2) work in a professional capacity for that religious organization at the request of the organization; or

   3) work at the request of the organization in a religious vocation or occupation for the organization (or its § 501(c)(3) affiliate).

The petitioner (religious organization) must show that it is a bona fide, non-profit, tax exempt religious organization under § 501(c)(3) of the Internal Revenue Code. This can be shown by submitting copies of the organization’s articles of incorporation, bylaws, financial statements, and letters from the Internal Revenue Service showing that the religious organization is nonprofit and exempt from taxation.

Furthermore, a letter from an authorized official should indicate that the individual has been a member of the religious organization and that the foreign and U.S religious organizations belong to the same religious denomination. The religious organization should provide a sworn statement by an authorized official outlining the hours the individual will work, the duties and responsibilities the individual will perform and the remuneration the individual will receive. Once the R-1 visa is approved, the religious worker, spouse, and children (under 21 years) are granted admission for three years which may be extended for an additional two years.

The R visa allows the individual to apply for permanent residency. If an individual has been in R status for at least two years, a Special Immigrant Petition I-360 may be filed by either the Religious worker or the employer. The Special Immigrant Petition is a step towards obtaining permanent residency. Please contact us if you have any questions regarding Religious Worker visas.

L-1 Visas for Foreign Employees Seeking Intra-Company Transfers to the U.S. : Immigration Law Answers Blog

Generally, foreign nationals who are employed with a company abroad and who wish to enter the United States to continue working for the same employer, subsidiary, branch office, or affiliate may enter the United States via the L-1 Nonimmigrant Visa for Intracompany Transfer. There must be a relationship between the U.S. company and the foreign company abroad in order to transfer the foreign employee to the United States. Documentation to show the relationship may include:

  • common ownership documents;
  • similar name of the two companies;
  • 50% common ownership, although there may be situations where there is less than 50% ownership but the evidence shows that the parent company controls them.

  In order for the foreign national to obtain an L-1 visa, certain requirements must be met. The requirements include:

  • the foreign national must have worked continuously abroad for one of the past three years by the parent, subsidiary, branch office, or affiliate of the U.S. company;
  • there’s a qualifying relationship between the company abroad and the U.S. company;
  • the foreign national will continue working in a managerial capacity or executive capacity or a capacity requiring a specialized knowledge.

  Examples of employees being employed in an “executive capacity” include:

  • president,
  • vice president,
  • CFO
  • CEO.

  Employees in a “managerial capacity” are those who:

  • manage the organization, department, subdivision, or function;
  • supervise the work of other professional employees.

  Foreign nationals with “specialized knowledge” include individuals with an advanced knowledge of the company’s product, business, service, research, equipment, techniques, management, or other activity that is not readily available in the U.S. labor market.   Once it’s established that the foreign employee may be transferred to the U.S. company, obtaining L-1 nonimmigrant status requires the U.S. employer to file a Form I-129 Petition for Nonimmigrant Worker with the U.S. Citizenship and Immigration Services (USCIS). It takes USCIS approximately three months to render a decision. Upon approval, the employee must apply for an L-1 visa at the U.S. consulate abroad. Depending on the employee’s position, the foreign national will be issued either an L-1A visa if working in an executive or managerial capacity or an L-1B visa for those continuing to work in the capacity requiring a specialized knowledge.   For more information on L Visas Intracompany Transfer visas or any other area of immigration law, please contact us at 214-999-9999.

The H-1B Program: Tips for Employers and Employees During Unannounced Site Visits : Immigration Law Answers Blog

Posted on October 12, 2009 by Robert A. Kraft

The USCIS Office of Fraud Detection and National Security has started an assessment of the H-1B program where they have immigration officers go to the H-1B employers and employees and make unannounced site visits. The unannounced site visits will occur at the place of business that is listed on the H-1B petition, so they will go to the employee’s work site. Essentially, what they are doing is making sure that there is no fraud in the H-1B program and that the employee is actually working at the employer’s place of business. They have other verification methods that include, but are not limited to: review of the public records and information; contact via written correspondence, the Internet, fax, e-mail or telephone.   At the unannounced site visits, an interview may be conducted to make sure the H-1B employee is performing the duties as stated on the H-1B petition. USCIS could ask what the employee’s job title is, the position duties, the requirements for the position, and how much the employee is getting paid. They could ask for paycheck stubs (just to verify).   Tips for the employer and employee:

  • Make sure to review the petition in its entirety, the nature of the job offer, and the terms of employment;
  • The H-1B petitioner/employer must pay for all expenses including attorney’s fees and filing fees.USCIS may request to see a copy of the payment records. Make sure to reimburse if any of the fees were paid by the employee;
  • If the employer or employee is not present during an unannounced site visit, then USCIS will usually ask for the HR manager. Make sure the HR manager is aware of this specific information;
  • Make sure you request the officer’s name, his or her title, and contact information for the site investigator. There are multiple government agencies that may audit in the H-1B program, including Immigration and Customs Enforcement (ICE), the USCIS, the Department of Labor’s Wage and Hour Division, and/or the USCIS National Threat Assessment Unit. Know which agency you’re providing information to in the event follow up is needed;
  • Request a business card with a toll free number to obtain confirmation of his/her credentials prior to providing any information.
  • Employers should comply with reasonable requests by the officers examining the employer’s premises or work areas and documents. But if there is a secure area that no one goes to, then the employer should explain it to the officer.
  • Do not “guess” about any information provided during a site visit. If you do not know the answer, you may want to tell the officer that you will follow up with the officer to provide accurate information after requested information is obtained;
  • Take notes of all information requested and provided,whether orally or in writing, the locations visited, the pictures taken (obtain copies), and any other information from the site visit.
  • Keep a record of all documentation provided by the officer during the site visit.

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Another Judge Rules Farmers Branch Rental Ban Is Unconstitutional : Immigration Law Answers Blog

For the second time, a federal judge has declared a Farmers Branch ordinance banning illegal immigrants from renting in the city to be unconstitutional. Here are excerpts from a Dallas Morning News article reporting this decision:

U.S. District Judge Jane Boyle of Dallas ruled Wednesday that the ordinance was an attempt to enforce U.S. immigration laws – something the judge said only the federal government can do.

The judge also issued a permanent injunction to stop Farmers Branch from enforcing Ordinance 2952.

Mayor Tim O’Hare, the driving force behind the ordinances, said he wants to appeal.

“The American people are tired of judges legislating from the bench,” he said. “This decision is not unexpected but welcomed, because it allows us to get closer to this ordinance becoming reality.”

But O’Hare said the City Council would have to vote on whether to continue a fight that has cost the city nearly $3.2 million since September 2006. And the city may need to spend an additional $623,000 in legal fees in the year ahead, city finance director Charles Cox said Wednesday.

About one-quarter of the estimated 30,000 people who live in Farmers Branch were born outside the United States. About 47 percent of the city’s population is Hispanic.

In the past four years, the city has proposed a series of ordinances that would make it illegal for landlords to rent to illegal immigrants. A version approved by the council in 2006 was repealed in early 2007 to make way for another ordinance.

That ordinance, No. 2903, was approved by two-thirds of voters in 2007 but later declared unconstitutional by U.S. District Judge Sam Lindsay. The city abandoned an appeal of that ordinance in favor of Ordinance 2952. No. 2952 added all rental units, including houses, to the ban on renting to illegal immigrants.

Trying To Stop Passport Fraud : Immigration Law Answers Blog has an interesting story about U.S. passports, and the ease with which they can be fraudulently obtained. This is apparently a big problem, and should be addressed as soon as possible by the government. Here are excerpts from the article: 

Alarmed by a government report revealing how easy it is to obtain a fraudulent passport in the United States, lawmakers are calling for changes to the system. “A U.S. passport is a key to virtually anywhere in the world,” says Sen. Jon Kyl (R., Ariz.). A recent report from the Government Accountability Office showed that an undercover investigator was able to procure four U.S. passports by using fraudulent documents.

Says Laura Tischler, a spokesperson for the U.S. Department of State, “The report says we need to do more, and we are doing more.” The State Department recently gained access to the Social Security Administration’s master file of deceased persons to ensure that criminals won’t steal those identities. It is also improving oversight of the passport system and seeking access to state databases so that officials can confirm the validity of drivers’ licenses and other documentation.

K-3 Visa Processing : Immigration Law Answers Blog

Spouses of United States citizens may enter the U.S. with a non-immigrant K-3 visa while the immigrant visa petition is pending. It is important to note that the marriage must be valid in order to qualify and all previous marriages must be legally terminated. Thus, one will include either divorce or death documents (if applicable).

To obtain a K-3 visa, the U.S. citizen will file Form I-130 Petition for Alien Relative along with supporting documentation and the filing fee of $355. Once U.S. Citizenship and Immigration Services (USCIS) receive Form I-130, USCIS will issue a receipt notice indicating that they received the petition. The U.S. citizen will thereafter file Form I-129F Petition for Alien Fiancé with USCIS and include the I-130 receipt notice, and other supporting documentation. There are no filing fees when filing Form I-129F in this second step.

If the Immigrant Petition (Form I-130) has not been decided, and Form I-129F has been approved by USCIS, the file will be sent to the National Visa Center (NVC). The NVC will process the K-3 visa petition and send the K-3 petition to the U.S. Embassy or Consulate where the marriage took place or visa applicant’s country of nationality. The K-3 visa applicant will be instructed by the U.S. Embassy or Consulate of further administrative processing.

If both Form I-129F (K-3) and Form I-130 (Immigrant Relative petition) have been approved by USCIS and both petitions were received by the NVC, the NVC will process the immigrant visa petition since there is no need to process the K-3 visa.

Please call us at (214)999-9999 for further information on K-3 visas or other immigration related questions.

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