When seeking U.S. permanent residency, the USCIS or Department of State will ask (among other things) whether the applicant has ever been a member of a Communist Party or any other totalitarian party. While many applicants will answer “no,” citizens of certain countries may have to disclose some type of affiliation with a Communist Party – even though membership was involuntary and there was no active participation.

Example: Sergei is a 30-year old U.S. citizen and he wants to sponsor his father, Fedor – a Russian citizen – for U.S permanent residency. In 1982, prior to the dissolution of the U.S.S.R., Fedor was required to register as a member of the Communist Party in order to qualify a government job. Since this was the only job available to him, and since he had three children to support, he had no choice but to register for the sake of employment. After the dissolution in 1991, Fedor ceased any affiliation with the Communist Party and found a new job as a project manager with a private manufacturing company.

In applying for Adjustment of Status, Fedor disclosed that he had been affiliated with a Communist Party from 1982 to 1991. In doing so, Fedor may have admitted to being inadmissible for purposes of obtaining a green card.

However, there are exceptions to this inadmissibility:

Involuntary Membership

Fedor may not be inadmissible if he can demonstrate that his membership or affiliation with the Communist party was “involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes.”

Past Membership

Fedor may also not be inadmissible if he can demonstrate that the membership or affiliation terminated at least two (2) years before the date of application; five (5) years before the date of application (if his membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date; and he is not a threat to U.S. security. In the instant case,

Close Family Members

Finally, the Attorney General may waive the application in the case of an immigrant who is the parent, spouse, son, daughter, brother, or sister of a U.S. citizen, or a spouse, son, or daughter of green card holder for humanitarian purposes, to assure family unity or in the public interest if the immigrant is not a threat to U.S. security. Since Fedor is the parent of a U.S. citizen, and he has shown that he does not pose a threat to U.S. security, his inadmissibility may be waived by an order of the Attorney General.

Conclusion

The USCIS called Fedor and his son in for an interview, at which time he explained that he only volunteered to be a member of the Communist Party in order to secure employment and that his membership ended in 1991. Since it had been more than twenty (20) years since his membership ended, and since he demonstrated that his membership was involuntary, the USCIS elected to waive his inadmissibility and grant him U.S. permanent residency.

Visiting the United States

Every year, millions of people from all over the world visit the United States for pleasure, personal or business reasons. Generally, any applicant seeking to visit the United States must show that:

• The purpose of the trip is for temporary business or pleasure
• The visit is for a specific and limited period
• He/she has sufficient funds to cover expenses throughout the period of the visit
• He/she has sufficient ties to the home country to ensure departure at the end of the visit

Visa Waiver Program

Citizens of certain countries under the Visa Waiver Program do not need to apply for a visitor visa before coming to the United States. These individuals are permitted to enter the United States for up to ninety (90) days in B-1 or B-2 status. Click here to learn more about the Visa Waiver Program.

B-2 Status

If the purpose of the visit is the following, the applicant will be admitted under B-2 status:

• Tourism
• Vacation
• Visiting friends or relatives
• Obtaining medical treatment
• Participating in social events hosted by fraternal, social, or service organizations
• Participating in musical, sports, or similar events or contests as amateurs, providing they are not being paid
• Enrolling in a short recreational course of study, not for credit toward a degree (for example, a one-day class on knitting at a community college)

B-1 Status

If the purpose of the trip is one of the following, the applicant will be admitted under B-1 status:

• Consulting or meeting with business associates and colleagues
• Attending a conference or convention (scientific, educational, professional, or business)
• Settling an estate
• Negotiating a contract on behalf of a Canadian company of which the applicant is employed

Activities That Are Not Permitted Under B-1/B-2 Status

• Studying full or part-time at an educational institution
• Employment (self or for a U.S. employer)
• Paid performances or any professional performance before a paying audience
• Arriving as a crewmember on a ship or aircraft
• Working as foreign press, radio, film, journalists, and other information media
• Seeking permanent residence in the United States

Canadians Entering the United States for Business

Canadian citizens enjoy a special privilege when traveling to the United States for brief business purposes. First, unlike citizens of many other countries, Canadians do not need to apply for a visitor visa in order to enter the United States. Instead, Canadians can simply state the purpose of their visit to a Customs and Border Patrol officer at a Port of Entry (POE).

Business Visitors

Canadian business visitors can enter the United States on a temporary basis to perform any of the following:

• Research and Design
• Growth, Manufacture and Production
• Marketing
• Sales: Sales representatives and agents taking orders or negotiating contracts for goods or services for an enterprise located in Canada, but not delivering or providing the goods or services, or buyers purchasing for an enterprise located in Canada
• Distribution
• After-Sales Service: This activity consists of installers, repair and maintenance personnel, and supervisors that have specialized knowledge essential to the seller’s contractual obligations, and who perform services or train workers to perform services (pursuant to a warranty or other service contract related to the sale of commercial or industrial equipment or machinery, including software, manufactured in Canada)
• General Service

General service includes professionals engaged in business activities under NAFTA, but not receiving salary or other payment from a U.S. source (although expense reimbursements are permitted).

Other general services include:

• Management and supervisory personnel involved in a commercial transaction for an enterprise located in Canada
• Financial services personnel (insurers, bankers or investment brokers) participating in commercial transactions for an enterprise located in Canada.
• Public relations and advertising personnel consulting with business associates, attending or participating in conventions
• Tourism personnel (tour and travel agents, tour guides or tour operators) attending or participating in conventions or conducting a tour that began in Canada
• Tour bus operators entering the U.S. or Mexico.
• Translators or interpreters performing services as employees of an enterprise located in Canada

How do I qualify as a NAFTA Business Visitor?

• Canadian citizen
• Seeking entry for one of the business purposes listed in the previous section
• The proposed business activity is international in scope
• Primary source of remuneration is outside of the U.S.
• The principal place of business, and the accrual of profits, is outside of the U.S.
• You meet the member country’s existing temporary entry immigration requirements

On September 12, 2014, the Department of State adjusted fees for various consular services – with some fees increasing and others decreasing. Some of the more common fees being affected include:

Immediate relative (family-based) application fee: Increase from $230 to $325
Employment-based application fee: Decrease from $405 to $345
Affidavit of support fee: Increase from $88 to $120
E-2 treaty investor fee: Decrease from $270 to $205
Renunciation of U.S. citizenship fee: Increase from $450 to $2,350
K-1 fiance fee: Increase from $240 to $265

Click here for details on all the fee changes.

Do You Need a Job Offer to Get a US Work Visa?

One question that constantly comes up from people looking to get a work visa in the United States is whether you need a job offer first. The short answer is generally “yes.” The reason is that most work visa categories require the U.S. employer to file a petition for a work visa on behalf of the prospective employee. For example, the H-1B specialty occupation visa requires the U.S. employer to offer a job in a specialty occupation (i.e., a bachelor’s degree or higher is a common minimum entry into the profession) with the USCIS. The prospective employee is the beneficiary of the petition, meaning that the employee would only get a visa if the employer’s petition is approved.

Are there any visas that don’t require a job offer?

The only visas that do not require a job offer are the EB-1 green card for people of extraordinary ability in the sciences, arts, education, business or athletics; or the EB-2 National Interest Waiver (NIW) green card.

What about Employment Authorization?

Technically, Employment Authorization is not a visa. It is a status given to certain non-immigrants which would allow them to work in the United States for a specific period of time. Employment Authorization does not require a job offer or a U.S. sponsor/petitioner. Examples of when Employment Authorization would be issued are:

• Individuals with pending applications for adjustment of status
• Spouses of certain non-immigrant visas, such as the L-1 or E-2 visa
• Recently graduated students in Optional Practical Training (OPT)
• Undocumented individuals granted status under Deferred Action on Childhood Arrivals (DACA)
• Individuals granted Temporary Protected Status (TPS)

In 2012, the USCIS began granting certain undocumented aliens employment authorization for a period of two-year years under the program Deferred Action for Childhood Arrivals or DACA for short. Approved DACA applicants may also be eligible for Advance Parole, which allows them to travel outside of the United States and to re-enter, provided that it was for humanitarian, educational or employment purposes.

DACA applicants are undocumented – meaning that they did not enter the country with inspection. Generally, undocumented aliens cannot adjust their status and get a green card even if they are married to a United States citizen. Advance Parole under DACA may provide a loophole.

Example:

Valeria was brought to the United States by her parents without inspection when she was 3 years old. She graduated high school in 2010 and was approved for employment authorization under DACA in 2012. In 2013, her grandmother in Mexico and became terminally ill. She obtained Advance Parole under DACA and was able to visit her grandmother for the last time before she passed. She returned to the United States after a two week stay. In 2014, she married her longtime boyfriend, John, who is a United States citizen. Since Valeria was able to provide proof that she re-entered the United States legally in 2013 under Advance Parole, John can petition her for a green card and she can now adjust her status without a ten-year ban or the need for a provisional waiver. She would not be able to adjust her status if she hadn’t visited her grandmother and re-entered under Advance Parole because her only entry prior to that was without inspection.

If you have been approved under DACA, or if you may be eligible, please contact us so that we can arrange a viable strategy for you.

En Español

En el 2012 la oficina de Servicios de Ciudadanía e Inmigración de Estados Unidos (USCIS) empezó a otorgar permisos de trabajo a ciertas personas indocumentadas por un periodo de dos años bajo el programa de Acción Diferida para los Llegados en la Infancia (DACA). Las personas que fueron aprobadas bajo este programa pueden ser eligibles para un Documento de Permiso Adelantado (Advance Parole), que les permitirá viajar fuera del país y reingresar a los Estados Unidos; siempre y cuando sea un viaje con propósito humanitario, educacional, o de empleo.

Los solicitantes del programa DACA son indocumentados—simplemente quiere decir que ingresaron al país sin inspección. Generalmente, las personas indocumentadas no pueden aplicar para un Ajuste de Estatus y obtener su mica dentro de los Estados Unidos aunque estén casados con un ciudadano Americano. El documento de Permiso Adelantado bajo el programa de DACA, podría ser una solución.

Ejemplo:

Valeria fue traída a los Estados Unidos por sus padres cuando tenia tres años. Se gradúo de la Preparatoria en el 2010. En el 2012 aplico para el programa DACA y fue aprobada. En el 2013 su abuela se enfermo gravemente y estuvo hospitalizada en Mexico. Valeria aplico para su Documento de Permiso Adelantado bajo el programa de DACA, fue aprobada, y así tuvo la oportunidad de visitar a su abuela antes de que falleciera.

Después de dos semanas de viaje, Valeria regreso a los Estados Unidos. En el 2014, se caso con su novio de la preparatoria, John, quien es ciudadano Americano. Como Valeria tenia un comprobante de que ingreso legalmente a los Estados Unidos en el 2013 con su Permiso Adelantado, John la puede pedir y pueden aplicar para un Ajuste de Estatus sin que Valeria sea sujeta a un castigo de 10 años o la necesidad de un perdón provisional. Sin el Documento de Permiso Adelantado, Valeria no podría ir a visitar a su abuela, y mucho menos hacer un Ajuste de Estatus en los Estado Unidos por que su única entrada anterior fue sin inspección.

Si usted ha sido aprobado bajo el program de DACA, o si usted califica para DACA, llamenos para fijar una estrategia viable para su caso.