Immigration

Bakker DeLaCruz can assist businesses that wish to permanently hire foreign workers in the U.S. and individuals who wish to immigrate to the U.S. We handle the following types of immigrant visa matters:

Permanent Residence Through a Family Member

U.S. Citizens may sponsor the following family members for permanent residence:
- Spouse: All prior marriages must have been terminated. They must also show that there is a bona fide marriage. This requires providing evidence of jointly owned property, children born to the marriage, co-habitation, co-mingling of assets or affidavits from others.
- Sons and daughters of all ages, married or unmarried: Note that for step-children to qualify, the marriage must have occurred before the child turned 18.
- Brothers, sisters and parents if the sponsor is at least 21 years old: The petitioner and beneficiary must have at least one common parent to qualify as siblings.

Permanent residents may sponsor the following family members for permanent residence:
- Spouses: As with citizens, all prior marriages must have been terminated. They must also show that there is a bona fide marriage. This requires providing evidence of jointly owned property, children born to the marriage, co-habitation, co-mingling of assets and affidavits from others.
- Unmarried sons or daughters of any age: Again, for step-children to qualify, the marriage must have occurred before the child turned 18.

It is important to note that permanent residents cannot sponsor a spouse if they gained their status based on prior marriage less than five years ago, unless the prior marriage was terminated by the death of the prior spouse. There is an exception if you can show by clear and convincing evidence that you did not enter into your prior marriage to evade immigration laws.

If a marriage is less than two years old when the foreign spouse obtains permanent residence, the permanent resident status will be conditional for two years. The spouses must jointly petition to remove the condition within the 90-day period immediately preceding the end of that two-year period.

Child Status Protection Act
All families with children who may reach the age of 21 during the pendency of their case should seek advice regarding the Child Status Protection Act (CSPA). The CSPA protects minor children from losing their eligibility for immigration benefits because they turn 21 years old as a result of processing delays on the part of the U.S. Citizenship and Immigration Services or the Department of State.

Permanent Residence Through Employment

EB-1
Alien of extraordinary ability in the sciences, arts, education, business or athletics
These foreign nationals may self-sponsor themselves and thus do not require an offer of employment. To be eligible they must have won a major internationally recognized award or meet at least three listed criteria. In addition, they must be coming to the U.S. to continue work in the area of expertise. If they are not self-sponsoring the U.S. employer must show that it has the ability to pay the foreign national’s wages.

Outstanding professor or researcher
An employer must submit a petition for an outstanding professor or researcher. The foreign national must enjoy international recognition and have at least three years of experience of teaching and/or research in the field. If the sponsor is a university, the university must intend to employ the foreign national in a tenured or tenure-track position or in a permanent position as a researcher in the field. If the sponsor is a private employer, the private employer must intend to employ the foreign national in a permanent research position in the academic field. They must also employ at least three full-time researchers and have achieved documented accomplishments in the field. The U.S. employer must show that it has the ability to pay the wages.

Multinational executive or manager
Multinational businesses may transfer their foreign employees to the U.S. on a permanent basis. If the worker is now employed outside the U.S., they must have been employed outside the U.S. for at least one year in the past three years in an executive or managerial capacity by the petitioning employer. If worker is in U.S., they must have been employed for at least one year in the three years preceding admission as a nonimmigrant in an executive or managerial capacity by the petitioning employer. The employer in the U.S. must be the same employer or a subsidiary or affiliate of the firm. The U.S. employer must have been doing business for at least one year. The U.S. employer must show the ability to pay the wages.

EB-2
Member of the professions with an advanced degree or one with exceptional ability in the sciences, arts or business
To qualify in this immigrant category, the foreign national must have a U.S. advanced degree or the equivalent, a bachelor’s degree and at least five years of post-bachelor’s experience in the specialty, or meet at least three listed criteria showing exceptional ability.

National Interest Waiver
Foreign nationals with advanced degrees or exceptional ability in the sciences, arts or business may self-sponsor by seeking a National Interest Waiver (NIW). They must show that their admission to permanent residence would be in the national interest. NIW applicants will be successful if their entrance would benefit the economy, culture, welfare or educational interests of the U.S.
An employer may also submit a petition for the foreign national, but must first obtain a labor certification, unless the employee qualifies for the exceptional ability waiver. The U.S. employer must show the ability to pay the wages.

EB-3
Skilled workers
Employers seeking to bring skilled workers to the U.S. on a permanent basis must first obtain a labor certification. The foreign worker must meet the educational, training, or experience requirements of the labor certification (the minimum requirement is two years training or experience). The U.S. employer must show ability to pay the wages.

Professionals
Employers seeking to bring professionals to the U.S. on a permanent basis must first obtain a labor certification. The foreign professional must hold a bachelor’s or equivalent degree, which must be required for entry into the occupation. The U.S. employer must show ability to pay the wages.

Unskilled workers
Employers seeking to bring unskilled workers to the U.S. on a permanent basis must first obtain a labor certification. The worker must meet any education, training or experience requirements required in the labor certification. The U.S. employer must show ability to pay the wages.

Nurses and physical therapists get special treatment. Contact Bakker DeLaCruz to learn more.

EB-4 Special immigrants
This includes religious ministers, certain long-time employees of the U.S. government (or of certain international organization) employed abroad, some physicians who have resided in the U.S. for a number of years, court dependents, etc.

Click here for more on employment-based permanent residence.

Labor Certifications/PERM
In seeking a labor certification, employers must establish that there are not sufficient workers who are able, willing, qualified and available at the time and place where the alien is to be employed and that the employment of the alien will not adversely affect wages and working conditions of similarly employed U.S. workers. A labor certification is not necessary if the alien qualifies for a “shortage occupation,” as determined by the Department of Labor, or for an occupation listed in the Department of Labor’s “Schedule A.” However, the position must be posted for ten consecutive days.

EB-5 Permanent Residence Through Investment

Foreign investors may obtain permanent residence to establish a new commercial enterprise in the U.S. The foreign investor must engage in a managerial or policy-making capacity. At the time this was written, the foreign investor must have or be actively in the process of investing $1 million (or at least $500,000 if in a designated “Targeted Employment Area”). The foreign investor must show that the capital was obtained through lawful means. In addition, the investment must benefit the U.S. economy and create full-time employment for at least 10 persons other than the alien, the alien’s spouse and children, and nonimmigrant aliens—within the next two years. The petition processing time is two years, but it may be possible to obtain advance parole in about 90 days. The permanent resident status is conditional for two years. The investor must petition to remove the condition within the 90 day-period immediately preceding the expiration of the two-year period.

Removal of Conditions of Residence

Marriage
Marriage-based immigrant status is conditional for two years if the marriage is less than two years old at the time the status is granted. The couple must jointly petition to remove the condition and both spouses must appear for the interview. They must show evidence of a bona fide relationship. There are exceptions to the joint filing/interview requirement:
-    if it would result in extreme hardship (on either alien or his/her spouse or child)
-    entered into marriage in good faith and not at fault in failing to meet requirement
-    battered spouses or those subject to “extreme cruelty”

Investment
Investment-based immigrant status is conditional for two years. To remove the condition, the investor must show that he/she created a new commercial enterprise and placed $1 million ($500,000 in certain Targeted Employment Areas) at risk. The investor must have sustained the enterprise and investment in that business throughout the period of conditional residence. The investor will have met these requirements if he/she "substantially met" the investment requirement and continuously maintained the investment during the two-year period. The investor must have hired ten full-time employees or show that they will be hired.

Battered/Abused Spouses

Spouses who have been abused by their U.S. citizen or permanent resident spouses may self-petition for family-based immigrant status. The abuse must have occurred during the marriage and in the U.S., unless the abusive spouse is an employee of the U.S. government or a member of the armed forces. The abused spouse must have good moral character. The abused spouse must also show that the marriage was entered into in good faith. Parents of children who have been abused by that parent's U.S. citizen or permanent resident spouse may also self-petition. Finally, battered children who have been abused by their U.S. citizen or permanent resident parent may also self-petition.

If the spouse has already obtained conditional permanent resident status, they may also self-petition for removal of the condition.

Adjustment of Status

Certain nonimmigrants can adjust to immigrant status while in the U.S. Bakker DeLaCruz handles the following:
Based on immigrant petition or derivative spouse or child
Based on admission as fiancée and subsequent marriage to citizen
Based on continuous residence since before 1972
Birth in the U.S. to a foreign diplomatic officer
Former diplomats
Diversity Lottery winners
Some adjustment applicants must undergo a medical examination.