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I was working in Kuwait as a contractor when I met the woman of my dreams. I tried to do the paperwork on my own to bring her to the US to marry me, but I quickly realized I needed help. I found Tracy Jong Law Firm online and after my consultation, decided to go with them. One of the absolute BEST choices I made that year. Raha took me step by step through what was needed. Whenever I had a question, she was quick to respond. She spoke with my wife to calm her fears about the process. I cannot express my gratitude to Raha and Tracy in words; without them I don't think I would now be with my wife – and with our son on the way!
Restaurant, Winery and Liquor
IMMIGRATION LAW FOR RESTAURANTS, WINERIES, AND MICROBREWERIES
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IMMIGRATION FREQUENTLY ASKED QUESTIONS
The following are answers to the many frequently asked questions concerning immigration law.
Immigration Frequently Asked Questions:
Do I Need A Visa Interview?
While most applicants living abroad are required to do an interview before obtaining the approved visa and visa stamp, consular officials may waive the interview if you fall under one of the following categories:
Children under 14 years of age;
Persons over 79 years of age;
Applicants for certain diplomatic or official visas;
Applicants seeking reissuance of non-immigrant visas in the same classification within 12 months of expiry;
National interest; or
Certain applicants who were eligible for Diplomat, Transit, International Organization or NATO visas.
What Happens At The Visa Interview?
The interview process varies for each applicant based on his individual situation, the details provided in the application and the supporting documents. Some of the basics that most applicants experience during the consular interview include:
Fingerprint scanning upon entry into the consulate;
Payment of any outstanding fees;
Collection of any documents requested to be provided at the interview; and
Meeting with consular official to meet together with and/or separately from your family members.
Keep in mind that this process differs for everyone. The list above enumerates some of the most common things that most applicants experience during the interview process.
In certain cases when the applicant is unprepared or the documentation provided is not enough for the consular official to approve the petition, a denial is given at the end of the interview and the petitioner is required to take appropriate action in order to continue the application process or abandon the petition.
However, after most interviews, the consular officer will review the application, the supporting documentation and the applicant’s responses during the interview to determine eligibility. The officer may request more documented evidence from the applicant to determine eligibility for the visa. After the application is reviewed and security checks have been completed, the consular official will make a decision. Assuming that no issues arise requiring further administrative processing, this step can take up to 4 weeks to be completed. If the application is approved, the applicant will be asked to return to retrieve the visa, or the visa will be mailed to the applicant. While it used to be quite common, these days consular posts do not provide same-day visa issuance. Before making any inquiries about the status of a case, applicants must wait at least 90 days from the interview date or submission of supplemental documents, whichever is later.
When Do I Get My Actual Visa Stamp?
Once the visa is approved, it is stamped into your passport. The stamp contains very specific biometric information to prevent fraud. The visa contains the following information:
The location of the consular post issuing the visa;
The number of the visa (control number);
Category applicable to you;
Date of issuance;
Date of expiration;
The number of entries permitted for the visa (sometimes it is unlimited until expiration);
Your name, date of birth, sex, nationality, and passport number; and
Name of petitioner and type of petition (as well as how long the petition is valid).
What To Do When Your Non-Immigrant Visa Petition Is Approved
You are in the U.S.:
Upon approval of the petition, you will receive an approval form (I-797) from the USCIS. You must keep these documents with your immigration records. Keep in mind that you must
have proof of status in the U.S. (i.e. the visa/I-94, etc.).
You are living outside the U.S.:
Once the petition is approved and you have received a visa stamp from the consulate, you must begin to make travel arrangements. Be mindful of the dates on the visa to determine the restrictions placed on the issued visa. Some visas require the alien to travel to the U.S. within a specific time period (6 months) while other visas do not permit an alien into the U.S. until a certain date has passed (for example, 3 months before employment begins for an employment visa).
It is important to begin travel preparations in advance to ensure a hassle-free trip. Make sure to take all supporting documentation (all documents submitted to the USCIS and consulate throughout the application process) in addition to your passport and visa in the event that you are requested to verify your status. It is a good idea to make copies of all travel documents and supporting documents to give to a family member. It may come in handy in the event of lost documents or luggage.
When you travel to the U.S., make sure to bring copies of all documents that youhe had previously submitted to the USCIS, National Visa Center and the U.S. Consulate before, during and after the interview. In addition to this documentation, you must bring the following to ensure entry at the Port of Entry by the border official:
Passport with visa valid for 6 – 12 months;
Petition filing receipt; and
Letter from employer requesting that you be permitted to enter the U.S. (this should only be shown to the border official if a problem arises during admission).
What Do I Do When I Am At The U.S. Border?
When you arrive in the U.S., the border official will verify your information and upon approval, will welcome you into the U.S. In the event that the official cannot verify your information, he will send you into an interview room for what is referred to as a “secondary inspection”. This inspection allows the official to do some research and validate your status and the information you provide. It is best to have an emergency contact (person sponsoring the petition) so that if any information needs to be verified, that person may be contacted to answer some of the questions you are unable to answer or, alternatively, to validate your answers.
The border official is your last check point. He must check all of the documents presented as proof of eligibility to ensure their validity. In addition, the border official must ensure that you are truthful and do not present a threat to the U.S. (a requirement of all border officials). If you are refused entry by the border official, you are entitled to speak with an immigration supervisor. If the border official refuses this request, do not continue to fight, but rather make sure to get the officer’s name, write down everything that happened as soon as you can and contact an immigration attorney as soon as possible to discuss your options.
If the immigration officer decides to admit you, the officer will place a stamp in your passport noting the date and time of admission along with the authorized period of stay. The immigration officer will also comment on the I-94 given to you to document your entry into the U.S. The I-94 is used to track the your arrival and departure and must be surrendered upon each exit from the U.S. A new I-94 will be issued each time you are permitted back into the U.S.
Upon approval, you will be admitted into the U.S. You must then make sure to report to your petitioner (school, employer, family member) as soon as possible and take any additional steps required for your specific visa. CONGRATULATIONS!
I Am A Canadian. What Do I Need To Do To Enter The U.S.?
Since Canadians can enter the U.S. with their passports, you do not need to apply for a
in order to travel, work or study in the U.S. You do, however, need the
approved to demonstrate the purpose of your trip (and temporary stay) in the U.S. In addition to the approved petition, you are also required to demonstrate to the border official your eligibility for the visa. These documents are similar to those that an applicant living abroad would need to show to the consular official at the non-immigrant visa interview as well as when the applicant is entering the U.S.
What Do I Do When My Visa
If the stamp in your passport has expired, there are two options available:
You can continue without any action and the visa stamp will remain expired. This means that, although you have legal status in the U.S., you are not permitted to re-enter the U.S. should you decide to leave for any reason or period of time. You will still be allowed to carry on business as usual within the U.S. and travel throughout the country.
YOU ARE NOT ALLOWED TO TRAVEL OUTSIDE OF THE UNITED STATES WITH THIS OPTION. IF YOU DO, YOU WILL NOT BE GRANTED RE-ENTRY WITHOUT A VISA INTERVIEW AND A RENEWED VISA STAMP (which is not guaranteed).
If you need to travel outside of the U.S., you must get a new stamp issued into your passport. While many applicants have to go to their home country to get the new stamp, there is also the option of going to Canada to get a new stamp. This option would mean travelling to Toronto, Ontario (or
with a consulate post in Canada) where they will process your application. Currently, the typical wait time for a non-immigrant visa stamp renewal appointment is 7 calendar days (including weekends). After the appointment, the typical wait time (not including weekends) for processing is 2 business days. These estimates are subject to change and can vary and may take as long as 90 days.
Should you choose to take the second option and go to the consulate in Toronto (as an example), you will need to call 1-877-341-2441 (or the number provided on the U.S. Consulate website for the city nearest to you) to set up your appointment time, pay a visa application fee (if applicable), arrange where to pick up the new stamp in your passport (you will have to remain in the country until you receive your new stamp) and obtain more information regarding this process. It is important to understand you are NOT guaranteed a renewal stamp. The decision is made by the consulate official based on the documents you provide and your interview.
What you should take with you to your appointment to have the best chance at a renewal stamp is described below:
Appointment letter (provided by the U.S. Consulate after you make the appointment);
Valid passport (valid for at least 6 months);
Confirmation sheet for the online non-immigrant visa application which can be found at www.ceac.state.gov/genniv/. You will need to complete the required form online in order to receive the confirmation sheet.
Passport-style photos (if you did not already include them in your online application);
Proof of status in the US (your I-797); and
Documentation showing your status (bills, mortgages, accounts etc.) (We suggest that you also take the copy of the entire application submitted to the USCIS that resulted in the extension of you status.)
Once you are approved for your visa stamp, it will be printed in 1 – 2 business days and placed in your passport. Your passport will then be turned over to the courier service and delivered where you had previously selected to pick it up when you made your initial appointment.
There are some cases that may require additional administrative processing. These cases are usually resolved within 60 days of the interview. Once again, it is important to keep in mind that there is no way to guarantee the approval of your visa stamp.
What Is Premium Processing?
Premium Processing allows your petition to be reviewed within 14 business days of receipt. It is important to keep in mind that this does not affect the annual cap for the number of applications accepted every year, as that number is calculated based on when the applications come into the hands of the USCIS, and not when they are processed. There is an
to have your application reviewed through Premium Processing.
What Is A Request For Evidence?
Many times during the processing stage of an application, the immigration officer reviewing the file requires more information, proof or clarification on a particular part(s) of the application. Once the officer does a complete review of the submitted petition package, the officer then sends a ‘Request for Evidence’ (RFE) letter to the applicant detailing some of the questions he may have about the application, seeking clarification on particular issues and even request specific documents that may have been left out or may be required to better demonstrate the situation. At this point there are three options available to the petitioner:
Submit all of the requested evidence and continue the petition;
Submit some or none of the requested evidence and request a decision on the merits of the case (based on what is submitted, regardless of the missing documents); or
Withdraw the petition entirely.
Depending on the amount of evidence requested, the RFE will list a specific deadline by which the documents must be submitted. There are usually no extensions permitted for the RFE deadline; however, if no response is made within the time limit set forth, a motion can be made within 30 days of the deadline to reopen the case if:
It can be established that the RFE was not a material issue of eligibility;
Any required evidence was submitted with the petition or the RFE was complied with during the time allowed; or
The RFE was sent to an incorrect address (causing delays) or the USCIS was notified of a change of address before the RFE was sent.
What Do I Need To Travel To The U.S.?
Travelling can be very stressful. You leave the house thinking of all the things you may have forgotten and hoping for a smooth ride to your destination. This stress can multiply when you are travelling across the border. Whether citizen, resident or visitor, you must have certain documentation with you at all times while travelling.
The types and number of documents necessary will vary based on your status and what you are able to obtain as proof of status. It is also important to remember that the documents that are required must be the original documents. No copies of any kind will be accepted at immigration.
When you are a citizen of the United States or Canada, you may enter the United States at any land or sea port of entry with any one of the following documents:
U.S. or Canadian Passport
U.S. Passport Card
Trusted Traveler Cards (NEXUS, SENTRI, or FAST)
State- or Province-Issued Enhanced Driver’s License
Enhanced Tribal Cards (when available)
U.S. Military Identification with Military Travel Orders
U.S. Merchant Mariner Document
Native American Tribal Photo Identification Card
Form I-872 American Indian Card
Indian and Northern Affairs Canada (INAC) Card
In the event that you do not have any of the above mentioned documents, the Immigration officer will request 2 (two) pieces of documentation from you to allow entrance into the United States. One document must show proof of your identity. Documents accepted for identification purposes are:
Identification card issued by a federal, state, provincial, county, territory, or municipal authority; or
U.S. or Canadian military identification card.
The other document you must present must show proof of citizenship (of the U.S. or Canada). Documents accepted for citizenship purposes are:
U.S. or Canadian birth certificate issued by a federal, state, provincial, county, territory or municipal authority
U.S. Consular report of birth abroad
U.S. Certificate of Naturalization
U.S. Certificate of Citizenship
U.S. Citizen Identification Card
Canadian Citizenship Card
Canadian certificate of citizenship without photo
It should be noted that the above documentation referencing Canadians are only for Canadian citizens who are entering the United States for visitation purposes and not for any unlawful purpose.
Persons who hold immigrant or non-immigrant visas who reside in the United States, but hold citizenship elsewhere (not including Canada), must travel with all their documents or they may not only be denied entry into the United States, they may be sent back to their country of citizenship. Such situations are rather rare because, as most visa holders will tell you, the time, money and energy put into obtaining the visa in the first place is a constant reminder to have all documentation in order prior to travel, not only domestically, but internationally as well. The documents necessary for travel in this instance can vary depending on the status of the individual.
Those who hold permanent residency in the United States must have their passport from their country of citizenship as well as their Permanent Residency Card, also known as the Green Card. These two documents demonstrate the traveler’s right to travel as well as their immigration status in the U.S.
Those who hold non-immigrant visas (such as students or visitors) must carry their passport along with their current visa, usually stapled or stamped into their passport for ease of access. The visas given to non-immigrant visa holders must be re-stamped or re-issued upon reentry into the U.S.
My Spouse And I Were Married For Less Than Two Years When I Got My Green Card. Are There Any Limitations?
In order to reduce the number of marriages entered into solely for immigration purposes, the USCIS does not grant unconditional permanent residence to spouses of U.S. citizens or U.S. permanent residents who have been married less than two years. In these cases, when the petition for permanent residency is approved, a conditional permanent residence status is granted. This status gives the same benefits as an unconditional permanent resident; however, in order to maintain permanent residency, a joint petition must be submitted to remove the conditions after two years of marriage. This joint petition must be filed by both spouses as a couple and must be accompanied with documents that demonstrate that the marriage is still valid and intact (and has been for the last few years). These documents are similar to those that a married couple must submit when initially filing for a spousal visa.
In some cases, a joint petition is not possible due to the fact that the marriage was not successful. In other cases, the petitioning spouses dies, making it impossible for them to file with their resident spouse. In cases like these, a waiver needs to be filed. This process requires a lot more supporting documentation since the filing spouse needs to prove that even though the marriage ended, it was not entered into for immigration purposes alone. This can be very difficult and requires affidavits from persons who can attest to the validity of the relationship when it existed. The petitioner(s) must also explain why the marriage did not continue.
In the cases of a deceased spouse, it must be shown that had the spouse continued to live, they would still be married, or have at least been working on their marriage. In situations like this, it is best to seek the advice of legal counsel, so they can advise what supporting documentation is needed and how to move forward in the process.
How Do I Apply For An Employment Authorization Document?
With the exception of students who require permission from their designated school official to apply for an Employment Authorization Document (EAD), most applicants can submit the request for EAD after their petition has been approved or with any adjustment petition filed (depending on the visa that the alien holds). In order to apply for an EAD, the applicant must submit an application for Employment Authorization along with photo identification and proof of eligibility for the EAD (such as the filing receipt from his adjustment or change of status application).
There is a fee associated with the EAD application, but in some cases, when filed concurrently with the principal application (the application that gives them the authority to apply for an EAD) the fee may be waived. Since the USCIS has set an estimated processing time of 90 days, it is important to make sure to apply early (although no earlier than 120 days before the EAD is needed), allowing enough time for the USCIS to process the application before it is needed.
The National Benefits Center (where the applications are processed) will send the EAD card directly to the applicant upon approval. If the application is denied, the applicant will receive a letter detailing the reasons for denial. Based on those reasons, the applicant may be able to appeal the decision and provide additional information or clarify previously submitted information. In many instances, the appeal process is similar to the application process and can take just as long. The applicant is not allowed to work while awaiting the result of the appeal.
I Am In Another Country (Not The U.S.) And I Need To Get A Document Notarized. What Do I Do?
Certain documents require notarization in order to be legally enforceable, including affidavits, deeds and powers of attorney. The role of the notary is to act as an impartial witness to the signing of legally binding documents. The notary makes sure that the signer is actually the person named on the document and that he or she has not been forced to sign against his or her will.
What happens when there is a legal matter occurring in the U.S., but one or more parties to the matter are in another country? In this case, your attorney will need to check the laws that govern the matter to determine what acceptable alternatives there are. For example, if you are engaged in a real estate transaction in New York State, then the attorney would review New York State Real Property Law Section 301 (RPL §301), which outlines who can act as a notary outside the U.S.:
A diplomatic or consular agent or representative of the United States who is appointed or accredited to and resides with the country where the document is to be notarized;
A judge, presiding officer of a court with a seal, or court clerk (or any certifying officer of a court);
A chief civil officer (e.g. mayor) of a city or political subdivision;
A commissioner of deeds appointed to notarize documents according to the laws of the state of New York;
A notary public;
A person residing in or going to the country where the document is to be notarized and who is authorized to do so under the seal of the Supreme Court of the New York State; or
Any person authorized under the laws of the country where the document must be notarized to have the power to notarize that document.
If you find yourself needing to sign a document and get it notarized while you are in another country, be sure to consult with your attorney on the appropriate action to take to ensure it will be valid in your state’s courts. Not doing so could cause unnecessary, lengthy and possibly costly delays to your matter.
Tracy P. Jong, Esq. |
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