We represent individuals and corporations who wish to apply for their employees in petitioning for permanent residence through their employment. In multiple manners, we streamline applications for national interest waivers through exemption from labor certification, as for example, through a managerial or executive intra company transferee, or through proof of extraordinary ability or for outstanding researchers or professors.
Our collective experience in labor certifications exceeds 40 years.
We also petition for residence through familial relationships
We normally review each case to determine the most viable and efficient manner to proceed. Our processing is always supervised by an attorney, never just by a paralegal.
Citizenship / Naturalization
After decades of experience, we are fully aware of all manners to evaluate eligibility requirements for naturalization. We can review a client's residency to determine eligibility and also appraise impediments to citizenship that may arise from an arrest, failure to register for selective service, substantial stays abroad, failure to prepare and file proper income taxes, and other criteria.
We can also evaluate the possibility of nationality based on relationships to United States citizens. We fight denaturalization,where appropriate.
We handle all of the non-immigrant categories, both at the inception and for extensions:
B1 & B2 - visitors for pleasure and for business
E1 & E2 - treaty investors and treaty traders
F1, M1 - students
H-1B - professionals, performing a specialty occupation
H2B - seasonal and short term workers
H4 - dependents
J - exchange visitors
K - fiancees
L - intracompany transferees
O - aliens of extraordinary ability in the arts, sciences or business
R - religious workers
TN visas For Canadians and Mexicans under NAFTA
Adjustment of Status
Adjustment of status within the U.S. is available for immediate relatives of spouses or parents of U.S. citizens provided the alien entered with a visa, even though the alien’s authorized stay has expired. It is also available to alien applicants who have obtained a labor certification indicating that there are no qualified or available Americans who are capable of performing the services the applicant does, and provided the alien applicant is in authorized status. Also for aliens of exceptional ability in the sciences or arts, they may apply for adjustment of status, if they are in authorized stay and they can prove that they possess current widespread acclaim and international recognition requiring exceptional ability.
Two classes of visas are processed by U.S. Consulates abroad: immigrants and non-immigrants.
PERMANENT RESIDENCE – IMMIGRANT VISAS
To qualify for permanent residence, an applicant must have or be one of the following:
• A spouse or minor child of a U.S. citizen;
• A parent, adult child or sibling of an adult U.S. citizen;
• A spouse or minor child of a legal permanent resident;
• An employee that a U.S. employer has received approval from the
Department of Labor to hire;
• A person of extraordinary or exceptional ability;
• A refugee or asylee fleeing persecution; or
• An approved application in the visa lottery.
A personal interview for permanent residence is normally required before a U.S. Consul who will examine eligibility as well as confirming that the applicant is not inadmissible for an aggravated felony, or a prior order of deportation or for public health reasons, or for suspected terrorism.
TEMPORARY ENTRIES – NON IMMIGRANTS
Admissions on a temporary basis are usually referred to by letters and numerals such as B-2 (tourists), E-1 and E-2 (treaty traders and treaty investors), F-1 (students), H-1B (temporary professionals), J-1 (cultural exchange visitors), K-1 (fiancés of citizens), L-1 (intra-company transferees), etc. These non-immigrants must satisfy a Consul that they wish to enter the U.S. for a limited time and for a specific purpose. All non-immigrant applicants except (H-1) workers, intracompany transferees (L-1) and (V) family members must show that they are not coming to live here permanently.
Usually personal interviews are required.
Aliens coming as visitors from many countries such as Australia, France, Germany, Italy, Japan, New Zealand and Switzerland, are not required to obtain a visa from a U.S. Consulate abroad. These entrants are allowed entry for 3 months; extensions or change of status are not permitted unless the alien marries a U.S. citizen.
Our outstanding legal staff is dedicated to zealously protecting the rights of our clients. We individualize each case and pursue all available legal remedies. Some of these include Cancellation of Removal, Applications for Political Asylum, and if available, Adjustment of Status and Suspension of Deportation. At a removal hearing, we also seek, wherever feasible, Voluntary Departure, if no other remedy is available, or indefinite Deferred Departure in cases where no remedy applies except compassionate circumstances. In the ultimate circumstance that no remedy is available to remain in the U.S., including voluntary departure, we seek, in the event that a client is deported, to apply when applicable, for a Waiver in order to enable our client to return to the U.S.
In the event the Immigration Judge does not grant appropriate relief, we offer our services to appeal to the Board of Immigration Appeals. If, in our opinion, the Board ultimately denies the appeal and we believe the decision is arbitrary and capricious, or appropriate cases where new evidence has been obtained, we would make a Motion to Reopen and Reconsider. If we believe the Board is wrong in its decision, then we are prepared to appeal to a United States Court of Appeals, or if our client has been detained by the Immigration and Naturalization Service, then we may also proceed through a Habeas Corpus petition in a United States District Court.
We Handle all aspects of assisting registered nurses to practice their profession in the USA
PATHS FOR FOREIGN REGISTERED NURSES TO BECOME IMMIGRANTS OR NON-IMMIGRANTS IN THE U.S.
The nursing crisis in the United States offers an opportunity for foreign registered nurses to have a viable career in the U.S. and a route to become immigrants in the U.S. or to have a temporary grant of employment which may be thereafter converted into permanent residence.
PERMANENT RESIDENCE FOR REGISTERED NURSES UNDER THE 3rd PREFERENCE CATEGORY
Registered nurses are exempt from having to obtain a labor certification, which puts them on a fast track for permanent residence. This profession has been precertified by the Department of Labor because there are not sufficient Americans who are able, willing, qualified and available. A professional nurse may have less than a baccalaureate degree in nursing as long as the nurse has completed a program for professional nurses in his/her country, Canada or the U.S.
Registered nurses as opposed to licensed nurses or practical nurses qualify for the 3rd employment preference if they have had at least 2 years of nursing studies after high school or secondary school and have a nursing license issued by their country and either a certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS), or a full and unrestricted license to practice professional nursing in the state intended for employment
The CGFNS exam is given several times each year at more than 50 exam locations in the U.S. and worldwide. For information about the CGFNS, the telephone number is 215-349-8767.
Before an immigrant visa or adjustment of status is granted, the Visa Screen Certificate or a certified statement must be obtained from the International Commission on Healthcare Professions (ICHP), a part of the CGFNS.
THE VISA SCREEN CERTIFICATE OR THE CERTIFIED STATEMENT
Professional nurses must pass all 3 sections of the Test of English as a Foreign Language
(TOEFL), or the Michigan English Language Assessment Battery (MELAB), to prove English proficiency. An equivalency evaluation of the nursing credentials such as transcripts of school records, diplomas and licenses is made by ICHP. The Visa Screen Certificate verifies that the applicant has the education, training, license and experience equivalent to American registered nurses; that the documents demonstrated are authentic and unencumbered, and that the applicant is fluent in English and has an appropriate professional license.
In lieu of the Visa Screen Certificate for nurses who completed their nursing education in English that includes Australia, Canada (except Quebec), South Africa, Ireland, New Zealand, the United Kingdom and the U.S., a certified statement may be issued by CGFNS. Starting on July 1, 2002, nurses from Trinidad and Tobago have been granted provisional eligibility for 15 months to apply for the certified statement in place of the Visa Screen Certificate. For the certified statement to be released, the prospective nurse must be licensed in the state of intended employment and shall have passed the National Council Licensure Examination (NCLEX). Each state will establish that the prospective nurse has an authentic and unencumbered foreign license. Within 35 days after receipt of an application, CGFNS must issue the certified statement.
A temporary license may be issued after the prospective nurse enters the U.S. and registers to take the NCLEX test for permanent licensing. After the nurse arrives in the U.S., and/or obtains permanent residence, an application for NCLEX must be filed immediately and the test must be taken within 30 days of registering. In most states, the temporary permit is issued when the application is filed. Some states do not have temporary licenses. Each state must be checked for its particular licensing requirements. Some states require all foreign nurses to pass the CGFNS; other states require the NCLEX. In all cases, the nurse must address the licensing requirements of the State of intended employment, which usually encompasses passing the NCLEX exam.
SECOND PREFERENCES FOR PERMANENT RESIDENCE
In addition to the 3rd preference, if the nurse is an outstanding professor or researcher, or a professional with an advanced degree such as a Masters Degree or a baccalaureate with at least 5 years of progressive employment in the field, a 2nd preference may be obtained. Or if the prospective nurse can demonstrate exceptional ability that will substantially benefit prospectively the national economy, cultural or educational interests or welfare of the U.S., a 2nd preference may be also secured.
This second preference may be worth applying for, if applicable, for nationals of countries such as China or India where the 3rd preference employment categorys priority date is not current. As soon as the preference is approved for nationals of all other countries, the 3rd preference approval will allow an immediate application for permanent residence.
A priority date is set when the petition is filed with the INS regional service center. In the event the employer is changed, the priority date stays with the nurse. If the nurse changes the employer and secures another employer, the original priority date remains in place for the nurse.
NON-IMMIGRANT PROFESSIONAL NURSES
The H-1C is a limited visa, restricted nationally to only 500 applicants for nurses to work in hospitals where there is a health professional shortage. The nurse must be a registered nurse, fully qualified to practice immediately upon arrival in the U.S., and have already passed the CGFNS. An employer attestation is required that the hospital since 1994 has had a health professional shortage, has no fewer than 190 licensed acute care beds, at least 35% of its patients are entitled to medicare, and at least 28% are entitled to medicaid. The hospital must also attest that it is taking steps to recruit U.S. citizens or permanent residents, that the nurse will be paid the same rate as other nurses, and that the employment of the prospective nurse will not adversely affect wages and working conditions of nurses similarly employed.
If you would like additional information or if you wish to consult with us or desire assistance, please call us at 212-944-9420 and ask for William Oltarsh or Jennifer Oltarsh, or send us a fax at 212-944-9120, or e-mail us at firstname.lastname@example.org.
If a prospective nurse applies for a student visa, it should be remembered that to obtain a student visa, the prospective student must demonstrate to a U.S. Consul, or if in the U.S., then to the Immigration Service that he/she has a residence in a foreign country which he/she has no intention of abandoning, who is a bona fide student, intending to pursue a full course of study, and who seeks to enter the U.S. temporarily to pursue such a course in nursing at a university, or institute that is accredited to the Immigration Service.
Schools are authorized by the Immigration Service to issue Certificates of Eligibility (Form I-20). Form I-20AB (academic) is used for F-1 students; Form I-20MN (vocational) is for M-1 students. The I-20 certifies that the student has been accepted to an accredited school. Evidence must be adduced of financial ability to support oneself during the course of study as well.
Students are admitted for the duration of status, that is the period required to complete the program of study plus any authorized period of post-completion practical training plus a 60 day grace period for F-1 students. A period for practical training is customarily granted for up to one year. For the M-1 student, a grace period is allowed of only 30 days. The M-1 student is normally also granted a duration of stay for the period needed to complete the course of study.
The M-1 student may be granted one month of training for every four months, not to exceed six months in total. The F-1 student, provided the course of study has lasted at least one year, may obtain practical training for up to one year.
Since BCIS regulations are constantly changing prospective students may wish to consult with a lawyer regarding their long term goals.
We have successfully applied for persons who have left their countries as refugees because they and their families suffered persecution and discrimination for their political opinion, their race or religion or because of their national origin. For two centuries the U.S. has been a haven for such persons as well as those who are fleeing from national calamities such as genocide or catastrophic disaster. We at Oltarsh & Associates, P.C. have always tried to help and to strive to relocate worthy applicants to resettle and find a home in our nation.
E-3 TREATY PROFESSIONAL VISAS FOR AUSTRALIANS
Australians may apply under the Australian – United States Free Trade Agreement (AUSFTA) to live and work in the United States. E-3 visas are exclusively for Australians, and number 10,500 including spouses and children. Spouses of E-3s may work as well. Verification that the applicant’s salary meets or will meet a standard of parity with equivalent American workers is necessary. A Labor Condition Application must indicate and be approved by the Department of Labor that working conditions and wages will be equal with U.S. workers.
This visa is for those Australians who qualify under specialty occupations, namely, who have worked in a field requiring a theoretical and practical application in a professional field and at least have a bachelor’s degree or its equivalent.
DIVERSITY VISA LOTTERY (DV-2007)
This new lottery Act makes available 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States.
The annual DV program makes permanent residence visas available to persons meeting a
strict, eligibility requirement.
The DV-2007 diversity visa lottery must be submitted electronically between Wednesday, October 5, 2005 and Sunday December 4, 2005. No entries will be accepted
afternoon on December 4, 2005.
If a person was born in a country whose natives are ineligible but his/her spouse was born in a country whose natives are eligible, such person can claim the spouse’s country of birth provided both the applicant and spouse are issued visas and enter the U.S. simultaneously. If a person was born in a country whose natives are ineligible, but neither of his/her parents was born there or resided there at the time of his/her birth, such person may claim nativity in one of the parents’ countries of birth if it is a country whose natives
qualify for the DV-2007 program.
An applicant must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform the duties of the occupation.
The Department of State will only accept completed Electronic Diversity Visa Entry Forms submitted electronically beginning at 12:00 pm EST (GMT-5) on October 5, 200 5
and ending at 12:00 p.m. EST (GMT-5) on December 4, 2005.
All entries by an applicant will be disqualified if more than ONE entry for the applicant is received.
Successfully registered entries will result in the display of a confirmation screen containing the applicant’s name, date of birth, country of chargeability, and a date/time stamp. The applicant may print this confirmation screen for his/her records using the print
function of the web browser.
The entry will be disqualified if all required photos are not submitted.
A digital photo (image) of each applicant, his/her spouse, and children must be submitted
on-line with the EDV Entry Form.
Applicants will be selected at random by computer from among all qualified entries. Those selected will be notified by mail between May and July 2006 and will be provided further instructions.
For DV-2007, natives of the following countries are not eligible to apply because they sent a total of more than 50,000 immigrants to the U.S. in the previous five years: CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, EL SALVADOR, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PHILIPPINES, POLAND, RUSSIA, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.
LABOR CERTIFICATIONS, FINANCIAL ABILITY OF EMPLOYER TO PAY SALARY
The Administrative Appeals Office has recently issued several important decisions:
I. Proof of a sponsor’s capacity to pay a prevailing wage is essential to the success of a Labor Certification. A sponsor must demonstrate an ability to pay the required wage at the time of the job offer and at all the times an application is pending. The Department of Labor has the right to examine the income of the employer by reference to the sponsor’s tax return to verify an appropriate income to assure that sufficient resources are available to pay the offered wage. A line of credit of the sponsor is not proof of the employer’s ability to pay the wage since a bank is not obliged to honor the line of credit as a legal obligation.
II. Even if an employer has not earned enough to pay a prospective employee the required salary in a particular year, still the employer may succeed if the employer can show sufficient assets to pay the salary difference between what an employer earned in a particular year and the salary that had to be paid. In other words the Department of Labor may assess the totality of the circumstances of the employer’s income to determine the financial viability to pay the wage. If an employer cannot show adequate assets or revenues, the size and gross receipts of the business may be considered because if an employer has paid substantial wages to its employees in the past, the employer may secure a labor certification for its employee based on a pattern of financial solvency.
ADJUSTMENT OF STATUS – LIFE ACT CONTROLS DESPITE UNLAWFUL ILLEGAL REENTRY.
The U.S. Court of Appeals for the Tenth Circuit recently reviewed in a precedent decision two “contradictory” laws to determine whether the Attorney General could adjust the status of an alien who illegally reentered the U.S. after having been unlawfully present in the U.S. for more than one year. The alien married a U.S. citizen who filed an alien relative petition for him prior to April 30, 2001 under the Life Act.
The alien traveled to Mexico for his immigrant visa interview and was denied it because the U.S. Consul decided that he was inadmissible as an alien who had been unlawfully present in the U.S. for more than one year. As a result he was inadmissible for a period of 10 years. The alien returned to the U.S. without a visa because his wife was sick. The Court of Appeals held that the Life Act, Section 245(I) of the Immigration & Nationality Act could confer adjustment of status on this alien in spite of the fact that he illegally reentered the U.S. and had been illegally present in the U.S. for more than one year.
ADJUSTMENT OF STATUS: EXTRAORDINARY CIRCUMSTANCES
Does a failure to comply with a Voluntary Removal Order render an alien ineligible to adjust status in the U.S.? In a recent decision by the U.S. Court of Appeals in the 2nd Circuit, it was held that equitable relief would enable an alien to adjust status in extraordinary circumstances, e.g. such as where an immigration agent had misinformed the alien and the alien’s representative only advised her of a Voluntary Removal Order a day after she was required to depart the U.S., and the representative also misinformed the alien that even if she failed to depart voluntarily as prescribed, she could avoid being statutorily ineligible by demonstrating that there were exceptional circumstances beyond her control.
The case was remanded to the Board of Immigration Appeals to determine if Courts may grant exceptions to the ten-year ineligibility period incurred as a result of failure to comply with a Voluntary Departure Order. The U.S. Court of Appeals, Second Circuit, retained jurisdiction to grant the exception to the ten-year ineligibility bar if the Board did
Not heed the decision of the Court.
SPECIALTY OCCUPATION H-1 AND L-1 INTRACOMPANY TRANSFEREES MAXIMUM TIME ALLOWABLE
The Administrative Appeals Office (AAO) in a recent precedent decision extended an H-B classification beyond 6 years, allowing the alien to recapture time spent outside the U.S. The AAO held that the language of the statute “indicates that the six year period accrues only during periods when the alien is lawfully admitted and physically present in the U.S.”. Thus only the time actually spent in the U.S. counts toward the six years. The AAO stated that each time the alien beneficiary (H-1 or L-1) is outside the U.S., it does not count against the six year running time, and hence on returning to the U.S., the alien beneficiary (H or L) may recapture the lost time while abroad. The United States Citizenship & Immigration Services has officially adopted that the six-year period includes only the actual time spent in the U.S.
CANADIAN AND MEXICAN TEMPORARY WORK VISAS
The North American Free Trade Agreement (NAFTA) permits Canadians and Mexicans to enter the United States to perform the work set forth below without the requirement of work visas. Written proof must be shown that applicants will do any of the following for a company in Canada or Mexico:
a. Research and design;
b. Growth, manufacture and production;
d. Conducting commercial transactions;
e. Attending trade fairs;
f. After-sales services of machinery.
Canadian and Mexican specialized workers may use an alternative to the H-1 category (which is currently closed) by availing themselves of TN status. A bachelor’s degree is necessary from a college or university; or a license from a Canadian or Mexican Province or an American State. The professions listed below should satisfy the TN requirements:
Accountant, architect, economist, engineer, forester, graphic designer, hotel manager, industrial designer, interior designer, land surveyor, landscape architect, lawyer, librarian, mathematician, medical professionals, clinical lab technologist, dentist, dietitian, medical lab technologist, medical technologist, nutritionist, occupational therapist, pharmacist, physician, physio/physical therapist, psychologist. Recreational therapist, registered nurse, veterinarian, research assistant (college and university only), scientists (agronomist, agriculturist, animal breeder, animal scientist, apiculturist, astronomer, biochemist, biologist, chemist, dairy scientist, entomologist, epidemiologist, geneticist, geochemist, geologist, geophysicist, horticulturist, meteorologist, pharmacologist, physicist, plant breeder, poultry scientist, soil scientist, zoologist); social worker, teacher (college, university or seminary only), systems analyst, technical publications writer, urban planner, vocational counselor.
There is no limitation on the number of those who may qualify. A TN visa will be issued for one year and then the TN may be renewed annually for an indefinite period.
If you have any questions or difficulties, please call us.
ALIENS OF EXTRAORDINARY ABILITY
Under Immigration Law “Extraordinary Ability” means a level of expertise indicating that the individual is one of a small percentage who have risen to the top of their field of endeavor. The petitioner must demonstrate either a major onetime achievement, such as an internationally recognized award or patent or that he or she meets at least three of the enumerated criteria set forth below:
1. Receipt of nationally or internationally recognized prizes or awards.
2. Membership in associations in the field of the expert, which requires outstanding achievement of their members, as judged by recognized national or international experts.
3. Published material about the applicant in professional, artistic, or major trade publications or other major media.
4. Participation as a judge of the work of others.
5. Evidence of original scientific, scholastic, artistic, athletic or business related contributions of major significance.
6. Authorship of scholarly articles in the field.
7. Artistic exhibitions.
8. Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
9. High salary or remuneration compared to others in the field.
10. Commercial success in the performing arts.
A CGFNS Certificate must be obtained or a passing grade for the NCLEX-RN exam, to obtain permanent residence in the U.S. by a registered nurse. Also a nurse must demonstrate he/she has a degree from a nursing school and a license to work as a registered nurse in a foreign country; or a license to work as a registered nurse in the U.S. or a Certificate of successful completion of the aforesaid exams.
Registered nurses are considered in short supply in the U.S., hence no Labor Certification is required. An immigration application for preference and adjustment of status may be immediately submitted, if the nurse is in valid status in the U.S. If the nurse is abroad, the immigration approval will be sent to the National Visa Center to forward the approval to the U.S. Consulate where the foreign registered nurse is living. An offer of employment will be necessary and passage of the CGFNS, the TOEFL (test of English language) and TWE (test of written English) and TSE (test of spoken English). Evaluation that the applicants license and education are equivalent to a U.S. nursing program must be made.
The Visa Screen Certificate and green card authorization will be granted by the U.S. Consulate and the applicant may then enter the U.S. as a permanent residence.
GREEN CARD FOR PHYSICIANS IN UNDERSERVED AREAS
For qualified physicians, a national interest waiver may be obtained to do medical services in a Health and Human Services Department (HHS)-designated for an underserved area or for a Department of Veterans Affairs (VA) facility.
The petitioner must submit evidence to support the request for his or her national interest waiver.
a. The physician will be an employee on a full-time employment contract (issued and dated within 6 months prior to the date the petition is filed) for the required period of clinical medical practice, or an employment commitment letter from a VA facility. Or the
b. Physician will establish his or her own practice in an underserved area committing to the full-time practice of clinical medicine for the required period, and the steps the physician has taken or intends to actually take to establish the practice,
c. In a geographical areas or in a facility under the jurisdiction of Veteran Affairs.
A national interest waiver may also be sought by a Federal Agency or the Department of Public Health or the equivalent in a State for the physician in the following manner:
a. Federal Agency must attest to the Agency’s knowledge of the alien’s qualifications and the agency’s background in making determinations in medical affairs, and substantiate the finding that the alien’s work is or will be in the public interest;
b. The attestation from the Public Health Department of the U.S. or a State, must reflect that the agency has jurisdiction over the place where the alien physician intends to practice clinical medicine. If the alien physician intends to practice clinical medicine in more than one underserved area, attestations from each intended area of practice must be included.
If applicable for Exchange Students, candidates must prove that he/she has a Waiver of the foreign residence requirements.
Experienced Immigration law firm providing legal advice and representation in the following areas of US Immigration law:
» Green Card
» Work Visa, H1B
» Labor Certification
» Deportation, Asylum
Family-Based Immigrant and Non-immigrant Visa Petitions
Permanent Residence Applications for family members both in, and outside the U.S.
Alien Relative Petitions
Consular Processing for Immigrant and Nonimmigrant Visas
Applications for Removal of Conditions
Advance Parole/Permission to Travel
Document Replacement: Alien Registration Card, Naturalization Certificate, etc.
Employment-Based Visa Petitions
Aliens of Extraordinary Ability
Advanced Degree Professionals
Labor Certification Applications
National Interest Waivers
International Business Executives and Managers, Transferrees
O-1 Artists and Others of Extraordinary Ability
J-1 Exchange Visitors, including Medical Professionals
NAFTA/TN North American Free Trade Agreement cases
Deportation, Removal and Immigration Appeals
Denial of Applications
Deportation or Removal Proceedings
Hearings before the Immigration Judge
Appeals of Decisions
Consequences of being out-of-status
Special Immigration Petitions and Projects
Self-Petitions for Abused Spouses
Immigrant Visa Lottery