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Orange County Immigration & Naturalization Law Blog

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The requirements for family immigration visas

When people move from their home country to the United States, their families are not always able to stay together. However, once immigrants earn citizenship or lawful permanent resident status, they may sponsor relatives in obtaining family immigrant visas. The requirements for these visas are governed by U.S. immigration laws and are enforced in every state, including California.

In order to apply for an immediate relative or family preference immigrant visa, the sponsor must primarily reside in the United States. Sponsors must be at least 18 years old to sign the forms required for family immigrant visas, but there is no age requirement to petition for immigrant visas for family members. If their relatives are parents or siblings, however, the sponsors need to be at least 21 to file a petition.

Military members and citizenship

Military members in California who are not citizens but who are interested in naturalization may be unaware that certain military service members and veterans are eligible for naturalization under sections of the immigration law. The naturalization allowed under the law is due to the military member's service.

During periods of hostility, a military member who served even one day honorably may be eligible for naturalization. To qualify, the person must have either been on active duty or have been a member of the Selected Reserve of the Ready Reserve during the hostility period. The person must also have been admitted as a lawful permanent resident or have been in the United States or a U.S. territory at the time of their enlistment.

A primer on deportation for California residents

If an illegal alien violates immigration or criminal laws while in the United States, he or she may be deported or removed from the country. As removal is a formal legal process, the person being deported has the ability to challenge the deportation on a variety of different grounds.

The first step in a deportation is the issuance of a Notice to Appear by the United States Immigration and Customs Enforcement. This notice will contain the reason why the alien is a candidate for deportation. A hearing is then scheduled to determine whether the individual needs more time to find an attorney or will proceed without one. The NTA is then reviewed, and a determination is made as to whether the alien is going to be deported.

Changes in deferred action programs

Many immigrant families in California welcomed President Obama's Nov. 20 speech in which he announced taking executive action on immigration reform, effectively side-stepping Congress. The new reforms and programs announced by the President are good news for many people who wish to be able to remain in the United States while gaining the ability to legally work and live.

The major changes lie in newly available relief through the Deferred Action for Childhood Arrivals program as well as the deferred action for parents of U.S. citizens or lawful permanent residents program. DACA applies to people who have been in the United States continuously since 2010 who arrived in the country as children to apply. The changes include removal of the upper age limit, meaning people born before June 15, 1981 are now eligible to apply. The changes should be implemented within 90 days of the President's announcement. The deferral period was extended from two to three years and allows those who are eligible to receive permission to work and live in the U.S.

Attributes of dual nationality

Some California residents may want to know more about dual nationality. An individual may hold citizenship in two countries due to birth or marriage and be considered a dual national. In addition, a U.S. naturalized citizen may retain the citizenship of his or her former country. Automatic citizenship is granted when a child is born on foreign soil to parents who are U.S. citizens. Further, a U.S. citizen who marries a foreign national may automatically assume foreign citizenship in addition to retaining U.S citizenship.

There is a difference between acquiring foreign citizenship automatically and applying for foreign citizenship. There are certain parameters that apply for a U.S. citizen to lose citizenship. The individual must apply for citizenship to another country voluntarily without coercion and do it with the intent of renouncing his or her U.S. citizenship. The person's conduct or behavior may be used to establish intent.

Deportation study shows importance of legal representation

A new study on deportation hearings in California has demonstrated the importance of legal representation for immigrants. According to a study that was conducted in part by the Immigrants' Rights Clinic at Stanford Law School, immigrants who are facing deportation are three times more likely to be allowed to stay in the U.S. when they have help from a lawyer. The Northern California Collaborative for Immigrant Justice was also involved in the study.

Released on Nov. 6, the study looked at the cases of more than 4,000 immigrants who were jailed in Northern California over a period of 12 months. All of the individuals in the study were facing deportation proceedings as a result of criminal convictions or because they were undocumented. The study found that the people with immigration attorneys won their cases 33 percent of the time while those without legal representation only won their cases 11 percent of the time.

Employment immigration assistance

A California employer may find that a non-citizen fits the needs of a company at times, and assistance with immigration issues may be important for ensuring that the prospective employee can be used in that role. You may need help in determining the best employment-based immigration visa for the position. You might also want an experienced professional reviewing applications to ensure that everything is as accurate and complete as possible.

There are many employment-based immigration categories to consider, and your industry may be the most important factor in deciding on the immigration status to be sought by a foreign worker. You may need someone who has extraordinary ability. You might seek a prospective hire who has an advanced degree. In some cases, immigration for employment may not require particular skills, but you may have a need that is not being met by workers already located in the United States. Special visas can also be sought for high-demand professions in which a shortage of workers exists. Investors and entrepreneurs might also seek employment-based visas to develop projects or collaborate in the U.S.

How is overtime pay determined?

Employees in California are entitled to receive special overtime pay for any hours that they work beyond what is considered a normal workday or workweek. In California, a normal workday lasts for eight hours, and a normal workweek includes six working days and no more than 40 hours of work.

If an employee works for more than eight hours in a single day or for more than 40 hours in a single week, the employer must pay that worker one and one-half times their regular rate of pay to compensate them for the excessive hours. Any work that exceeds 12 hours in a single day entitles the worker to double their regular rate of pay. An employee who works for seven consecutive days should be paid double for any working hours that exceed eight on the seventh day.

If I marry a U.S. citizen, can I apply for a marriage-based visa?

Each year in California, many foreign-born individuals wonder if they can apply for and receive a marriage-based visa before wedding a U.S. citizen. Marriage-based visas are available in many circumstances for people whose unions are legally valid.

Immigration law treats different categories of immigrants differently when deciding whether to grant marriage-based visas. For those who previously entered the United States legally and were subjected to inspection by a border patrol agent, the process is fairly straightforward. For those who entered illegally, the process is much more difficult.

Employment immigration represents a vital opportunity

Modern California businesses that want to bolster their work forces have many avenues for doing so. Within the field of employment immigration, for instance, a range of schedule types and classifications makes it possible to expand your talent pool beyond national borders and forge important international connections in the process. Like other forms of employment, however, these immigration-based workforce supplementation methods and allowances are guided by a host of state and federal laws.

At Wilner & O'Reilly, our job is to impart your organization with the knowledge it needs to succeed and source top talent. We've represented countless employers and their workers as they sought visas, labor certifications and waivers. We've also assisted firms that needed to demonstrate their regulatory compliance for U.S. Department of Labor and U.S. Immigration and Customs Enforcement audits. Our ability to conduct strategic analyses of a given situation and find solutions that help you benefit from the law allows us to promote a healthier immigrant workforce culture.