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Archive for October, 2009

How you can tell a misdemeanor from a felony.

Because some violations of the law pose a more serious threat to order and public safety than others, the law divides crimes into several different categories. A “petty offense,” which may also be called a “violation,” is the kind of crime that poses the least risk to society. Petty offenses include such acts as illegal parking, running a stop sign and other traffic offense, and other acts such as littering or burning leaves in violation of a state law or local ordinance.

In most cases, when you are charged with a petty offense, you will not be placed under arrest, but will instead be issued a citation, a kind of summons that orders you to either pay a fine or appear in court to defend yourself against the charge at a specified date. But if you are wanted for a more serious crime, or if you have previously ignored citations issued to you, you may be placed under arrest and taken into custody.

That’s because the law in most jurisdictions makes ignoring citations a misdemeanor, the next category of crimes. Acts classified as misdemeanors are considered to present a greater threat to the public safety than petty offenses. Some of the crimes typically classified as misdemeanors include assault (you threaten to punch your neighbor in the nose) and battery (you actually punch him). Shoplifting of inexpensive items, writing insufficient funds checks for small amounts, and committing acts of vandalism are other crimes usually considered misdemeanors.

While the penalty for committing a petty offense is generally only a fine, in most states the penalty for committing a misdemeanor may include a fine, a prison term of less than one year, or both. Depending on state law, you may or may not be entitled to a trial by jury when you are charged with a misdemeanor, since the U.S. Constitution does not require jury trials when misdemeanor charges are involved.

You are entitled to a trial by jury when you are charged with a felony, the most serious kind of crime. Typical felonies include murder, manslaughter, rape, arson, and robbery. And some crimes which might otherwise be classified as misdemeanors can be considered felonies depending on the manner in which they are committed. For example, assault and battery are usually misdemeanors, but when committed with a gun or other dangerous weapon, or when they are committed in an especially violent or brutal way, they are considered aggravated assault and battery, crimes categorized as felonies. Similarly, while shoplifting an item that costs a few dollars is usually a misdemeanor, shoplifting an item above a value specified by state law (such as $200) may be classified as a felony.

The penalties for committing a felony are the most severe allowed by law. For example, while a misdemeanor may be punishable by up to a year of imprisonment, a felony is usually punishable by at least a year in prison. A fine may also be imposed against a convicted felon. And for some very heinous felonies, such as premeditated murder, the majority of states allow the prosecution to seek the death penalty, while others may provide for a life sentence without the possibility of parole.

Green Cards

An alien registration card carried by permanent resident aliens.

It entitles the holder to live and work in the United States. After four years and nine months, a green card holder can apply to become a naturalized U.S. citizen.

U.S. immigration laws base eligibility for a green card on either work or family relationships. If you are the immediate relative of an American citizen – spouse, child, parent, or sibling – you can apply for a green card. If you are a spouse or a minor child of a U.S. citizen, your application will be reviewed and a visa will be immediately available for you. Other family members will have to wait for a visa to become available, which could take several years. The reason for this wait is that obtaining visas to enter the United States is a two-step process involving two government agencies. The Immigration and Naturalization Service, a unit of the Justice Department, reviews and approves visa applications, while the State Department actually issues the visas. Sometimes the INS will approve a visa but the State Department has no visas available.

If you find employment in the U.S. and the employer is willing to sponsor you, you are also eligible for a green card. The more education and skills you have and the more necessary your job is in the U.S., the sooner you will be able to enter the U.S. and obtain your green card. Computer software engineers and nurses, for example, are in short supply, while waiters and mechanics are not.

Finally, there is a green card lottery every year that makes green cards immediately available to people from different areas of the world on a rotating basis. If you are from a country selected for the lottery that year, you can submit a one-page application with your information and, if you are picked, the State Department will grant you a green card. Like all lotteries, however, your chances of winning are slim.

Ways to get a green card:

Labor Certification. The process of proving that there are insufficient qualified workers to perform a specific job in a specific region. This is typically a lengthy process.

Outstanding Researchers. International recognition for being an outstanding academic.

National Interest Waivers. Professionals whose service would be of a national interest to the U.S. can apply for a green card without a sponsoring employer.

Extraordinary Individuals. People at the top of their fields can skip the labor certification process and apply immediately for a green card.

Family Immigration. Family-based green card applications. Except for immediate family members-spouses, minor children, and parents-it is a lengthy process.

Asylum. The process for people who are in the U.S. and fear returning to their country for fear of persecution based on their race, religion, or membership in a political or social group.

Lottery. A yearly drawing for a green card.

E2 Visas

How to get investors visa

An E2 visa is a non-immigrant visa reserved for investors from countries that have commerce and navigation treaties or bi-lateral investment treaties with the United States who have invested substantial capital in a U.S. company and who wish to come to the United States to develop and direct business operations of the enterprise.

Who is eligible for an E2 visa?

Alien investors whose home country maintains a treaty of commerce and navigation or bi-lateral investment with the United States Who have made a “substantial investment”(normally at least $25,000 or more) in a U.S. business. The business is 50 percent owned by citizens of that treaty country who intend to come to the United States to direct the operations of the enterprise in a capacity that is either executive, supervisory, or involves specialized skills. They must possess means of support independent of the enterprise.

What constitutes a “substantial investment” that would justify the grant of an E-2 visa?

While there is no particular dollar amount specified under the law, the investment must amount to more than 50 percent ownership in an enterprise that generates active income, rather than passive income, such as that derived from rental properties. In practice, some immigration lawyers believe that a minimum of $25,000 is necessary, however. In short, the investment must be substantial in relation to the total amount invested in the enterprise. E-2 visa applicants can bolster their case by demonstrating that jobs for U.S. workers would be created through the investment.

Must the alien invest his or her own money to be eligible for an E-2 visa?

They usually do. However, under some circumstances, an E-2 visa recipient may be an employee of a foreign company that qualifies as a treaty investor. But the employee must come to the United States in an executive or supervisory capacity to direct the enterprise or possess a specialized skill needed by the enterprise.

May an E-2 visa holder be accompanied to the United States by his or her spouse and children?Yes. The spouse and unmarried, minor children of an E-2 visa holder may accompany him or her to the United States on E-2 visas as well. This visa, however, does not automatically grant the spouse and children the right to work in the United States.

May an E-2 visa holder apply for permanent residency in the United States?

Yes. Like other non-immigrant visas, such as the H1-B for alien professionals, an E-2 visa entitles its holder to apply for permanent residency.

How long are E-2 visas valid?

Two years. E-2 visas are renewable for an indefinite period, as long as the visa holder continues in the same capacity and the business is actively engaged in trade or services.

Countries that Maintain Treaties of Navigation and Commerce with the United States for E-2 Visa Purposes

Argentina, Armenia, Australia, Austria, Bangladesh, Belgium, Bulgaria, Cameroon, Canada, Colombia, Costa Rica, Czech Republic, Democratic Republic of the Congo, Ecuador, Egypt, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Ireland, Italy, Jamaica, Japan, Kazakhstan, Korea, Kyrgyzstan, Liberia, Luxembourg, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Republic of Congo, Romania, Senegal, Slovak Republic, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom, and Yugoslavia.

Obtaining a non-immigrant visa can be a complicated process and may not always end with the desired result. While it is possible to obtain such visas successfully on your own, you may wish to save time and effort by hiring a qualified and experienced immigration lawyer. Our Find-a-Lawyer feature can put you in touch with an experienced attorney right now.

F-1 Visas

Visas for Foreign Students

The Immigration and Nationality Act provides two nonimmigrant visa categories for persons wishing to study in the United States. The “F” visa is for academic studies, and the “M” visa is for nonacademic or vocational studies.

Bckground Requirements

Changes in U.S. immigration law, effective November 30, 1996, require that no alien may be issued an F-1 visa to attend a U.S. public elementary or middle school (K-8). Any alien who wishes to attend public high school (grades 9-12) in the United States in student visa (F-1) status must submit evidence that the local school district has been reimbursed in advance for the unsubsidized per capita cost of the education. Also, attendance at U.S. public high schools cannot exceed a total of 12 months. Please note that these changes do not affect other visa categories such as the J-1 exchange visitor program or the qualified school-age child of an alien who holds another type of nonimmigrant visa (i.e., A, E, H, I, L, etc.).

No alien may be issued an F-1 visa in order to attend a publicly-funded adult education program.

Scholastic Preparation

The student visa applicant must have successfully completed a course of study normally required for enrollment. The student, unless coming to participate exclusively in an English language training program, must either be sufficiently proficient in English to pursue the intended course of study, or the school must have made special arrangements for English language courses or teach the course in the student’s native language.

Financial Resource

Applicants must also prove that sufficient funds are or will be available from an identified and reliable financial source to defray all living and school expenses during the entire period of anticipated study in the United States. Specifically, applicants must prove they have enough readily available funds to meet all expenses for the first year of study, and that adequate funds will be available for each subsequent year of study. The M-1 student visa applicants must have evidence that sufficient funds are immediately available to pay all tuition and living costs for the entire period of intended stay.

Acceptance Form

An applicant coming to the United States to study must be accepted for a full course of study by an educational institution approved by the Immigration and Naturalization Service (INS). The institution must send to the applicant a Form I-20A-B, Certificate of Eligibility for Nonimmigrant (F-1) Student Status for Academic and Language Students. The nonacademic or vocational institution must send to the student a Form I-20M-N, Certificate of Eligibility for Nonimmigrant (M-1) Student Status For Vocational Students. Educational institutions obtain Forms I-20A-B and I-20M-N from the INS.

Visa ineligibility / Waiver

The nonimmigrant visa application Form OF-156 lists classes of persons who are ineligible under U.S. law to receive visas. In some instances an applicant who is ineligible, but who is otherwise properly classifiable as a student, may apply for a waiver of ineligibility and be issued a visa if the waiver is approved.

Applying for a Student Visa

Applicants for student visas should generally apply at the U.S. Embassy or Consulate with jurisdiction over their place of permanent residence. Although visa applicants may apply at any U.S. consular office abroad, it may be more difficult to qualify for the visa outside the country of permanent residence.

Required Documentation

Each applicant for a student visa must pay a nonrefundable US$45 application fee and submit:

1. An application Form OF-156, completed and signed. Blank forms are available without charge at all U.S. consular offices;

2. A passport valid for travel to the United States and with a validity date at least six months beyond the applicant’s intended period of stay in the United States. If more than one person is included in the passport, each person desiring a visa must make an application;

3. One photograph 1 and 1/2 inches square (37x37mm) for each applicant, showing full face, without head covering, against a light background; and

4. For the “F” applicant, a Form I-20A-B. For the “M” applicant, a Form I-20M-N.

5. Evidence of sufficient funds.

Other Documentation

Student visa applicants must establish to the satisfaction of the consular officer that they have binding ties to a residence in a foreign country which they have no intention of abandoning, and that they will depart the United States when they have completed their studies. It is impossible to specify the exact form the evidence should take since applicants’ circumstances vary greatly.

US Port of Entry

Applicants should be aware that a visa does not guarantee entry into the United States. The INS has authority to deny admission. Also, the period for which the bearer of a student visa is authorized to remain in the United States is determined by the INS, not the consular officer. At the port of entry, an INS official validates Form I-94, Record of Arrival-Departure, which notes the length of stay permitted.

Employment

An F-1 student may not accept off-campus employment at any time during the first year of study; however, the INS may grant permission to accept off-campus employment after one year. F-1 students may accept on-campus employment from the school without INS permission. Except for temporary employment for practical training, an M-1 student may not accept employment.

Family Members

A spouse and unmarried, minor children may also be classified for a nonimmigrant visa to accompany or follow the student. Family members must meet all visa eligibility requirements, including evidence that they will have sufficient funds for their support, and that they will depart the U.S. when the student’s program ends. Spouses and children of students may not accept employment at any time.

Further Inquiries

Questions on how to obtain Forms I-20A-B and I-20M-N should be made to the educational institution. If the institution does not have the forms, it needs to contact the local INS office. Questions on visa application procedures at the American consular offices abroad should be addressed to that consular office by the applicant.

H-1B Visas

Special status for speciality workers

An H-1B visa, known as the “professional worker’s visa,” is reserved for people within “specialty occupations,” who are considered for admission on the basis of their professional education or their skills, or both. It permits U.S. companies to enhance their workforce by employing highly skilled foreigners. It is the most common and, usually, the easiest non-immigrant visa to obtain.

Who is eligible for an H-1B visa?

College degree holders or higher, or

Its equivalent in work experience, or

In rare instances, certain people in specific occupations, such as supermodels, and

A job offer from a U.S. company that agrees to sponsor the visa holder, and

In a position with the sponsoring company that requires the person to hold a four-year degree or its equivalent in experience and the wage paid is the prevailing wage for such a job within that jurisdiction

The spouse and unmarried, minor children of the H-1B visa holder are eligible for H-4 visas, though they will not be permitted to work in the US.

What are the limitations of an H-1B visa?

The visa is good for a maximum of three years, which may be extended another three years. After six years in H-1B status, the person must remain outside the United States for one year before being eligible to apply for another H-1B visa.

The visa-holder may only work for the sponsoring employer in the job specified in the sponsoring employer’s petition. If visa holders wish to change jobs, they must obtain a new H1-B visa. This can be done without leaving the United States by filing a new petition with the U.S. Immigration and Naturalization Service.

With the October 17, 2000 enactment of the American Competitiveness in the Twenty-First Century Act of 2000, applicants may begin working at their new job immediately upon filing the petition. Previously, applicants had to wait for approval before beginning work for their new employer. If the new petition is denied, work authorization ceases.

The number of visas issued had been set at 65,000, but was increased to 115,000 through legislation for the year 2000. The 2000 Act extended the limit to 195,000 for each of the next three years. Furthermore, Section 103 of the Act provides that H-1B visas sponsored by higher education institutions, nonprofit research organizations and government research organizations are not to be counted toward the cap.

What is the procedure to get an H-1B visa?

The sponsoring employer must first inquire at a state or local level what the prevailing wage is for the position expected to be filled by the visa holder.

Sponsoring employer files a labor condition application with the U.S. Department of Labor that outlines specific information about the job, including the prevailing wage and the working conditions.

Sponsoring employer then files an I-129 petition with the U.S. Immigration and Naturalization Service (INS) accompanied by a $110 filing fee, as well as an additional $500 fee imposed under the American Competitiveness and Workforce Improvement Act of 1998.

Once the INS approves the I-129 petition, the visa seeker may then apply for the H-1B visa.

Steps to take

An employer files a labor attestation, Form ETA-9035, Labor Condition Application for H-1B Nonimmigrants, with the U.S. Labor Department Employment and Training Administration. Once the employer gets approval from the Labor Department, the employer then files the following with the Immigration and Naturalization Service: A INS Form I-129, Petition for a Nonimmigrant Worker, along with a $110 filing fee

A INS Form I-129W, which allows the INS to record statistical information as required by the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA)

A fee, as required under the ACWIA: $1000 now, $500 before December 17, 2000

The approved labor attestation from the Labor Department

Proof of the alien’s academic qualifications and professional experience

A letter from the sponsoring company describing its business and the job it intends to fill with the H-1B visa recipient, why the alien is particularly qualified, and including a statement that the company will pay the costs of the alien’s return trip abroad if employment is terminated before the visa authorization period expires

Once the company receives approval from the INS, the prospective H-1B visa holder should then apply for the visa at the nearest U.S. consulate by filing: An optional Form 156, Nonimmigrant Visa Application

A passport photograph

The original H-1B approval notice receipt issued to the company by the INS

Converting Your H-1B Visa

An H-1B visa holder may apply for a change in status or take other steps toward permanent residency without affecting the H-1B status. Called “dual intent,” this kind of petitioning by the visa holder has been recognized in U.S. immigration law as acceptable since the passage of the Immigration Act of 1990.

The Competitiveness Act of 2000 provides some much-needed flexibility in the timing of visa conversions, and petitions for permanent status. If an I-140 application for permanent status has been under consideration by the INS for more than 365 days, the six-year limit on living in the US can be extended until a decision is made on the application. The same policy applies to I-485 change of status applicants, but the time limit on the application is 180 days. Filing or converting an H-1B visa can be a complicated process–you should consult with a qualified immigration attorney before doing so.