EB 2 refers to Employment Based Immigration category in 2nd preference. 2nd preference is allocated to intended immigration with Master's degree or higher education.
At the time of filing the application for green card, starting with request for labor certification, a date known as priority date is assigned. Priority date dictates when someone would eventually obtain the green card.
Only 140,000 visas (or adjustment of status applications) for employment based applicants can be granted in each year.
Subject to some adjustment for numbers flowing between categories, only 40,040 visas can be issued for EB2. When an immigrant enters the U.S. as an EB2, with a spouse and two children, four visa numbers are used - not one. The average employment based immigrant family will use between two and three visa numbers. That means less than 70,000 families will enter the U.S. each year as employment based applicants - and fewer than 20,000 families based with EB2 preference category.
Here is a great article by a fellow attorney that discusses the problem very well. Again, read the article here by Attorney Jay Solomon.
Monday, December 13, 2010
Wednesday, December 1, 2010
K-1 or Immigrant Visa (Green card)
Fiancé Visa known as K-1 is available to fiancés of U. S. Citizens. Typically, upon getting married, U. S. Citizen and spouse want to be together as soon as possible. Hence, pre-planning requires considering all the options- should the U. S. Citizen file for K-1 visa or file an Immigrant Visa Petition by submitting Form I-130 and then later file for fiancé Visa (K-3 visa).
K-1 visa and K-3 visa are totally different. K-1 is available when the marriage has not taken place and the fiancé will enter into the U. S. on non-immigrant visa and marry the U. S. citizen within 90 days. See previous article here.
K-3 visa is available to U. S. citizen spouses, of course after the marriage. It is issued to facilitate the arrival of U. S. Citizen spouses in the U. S. sooner when the immigrant visa petition process could take a long time. I am not sure if it has relevancy these days because USCIS (United State Citizenship & Immigration Service) is processing immigrant visa petitions (filed on Form I-130) rather quickly. However, in the past such visa petitions were slow to process and K-3 visa made perfect sense. It could also make a difference in the future when USCIS might divert its’ resources and I-130 process might slow down. I digress.
Again, K-1 visa is only for those who would like to marry in United States. It is important to note that from a cultural point of view girl's family in lot of countries would like to have the wedding in home country than sending the girl to another country. Different factors ranging from legitimacy of the relationship to social announcement and celebration to emotional aspect of marrying daughter off come into play.
So, it is important to discuss all of these issues among the family and evaluate where they want to do the wedding and which visa needs to be filed. If the wedding must take place in home country, and not in the U.S., K-1 is not an option. K-1 visa can take about 6-7 months in processing including petition adjudication by the USCIS and scheduling interview at the US Consulate. K-1 has to marry within 90 days of entry and apply for adjustment of status. So, the K-1 may lose about 60-90 days after entry and prior to applying for adjustment of status.
It can take about another 6-7 months for scheduling the interview and to approve the case. It means that it can take up to 9-12 months before the K-1 visa holder gets the green card. Another big factor is that parents and other family members who might want to attend the wedding in to the U. S. might not get the visa to come into the U. S. The consulate has the right to issue or deny the visa to parents in the exercise of discretion and there is not much an attorney can do to help. Such visa denial to the parents can really ruin the enjoyment and excitement.
On the other side, if immigrant visa process is followed, the spouse in foreign country may enter directly on immigrant visa within 8-11 months from any consulate and the green card will arrive in the mail within 1-3 weeks of entry. This process is less expensive. K-1 visa holder has to file for adjustment of status (green card) here in the U. S. and spend time and money on filing fees, get biometrics done and wait for employment authorization document for 3 months.
Needless to say, K-1 route is much more expensive and more time consuming to obtain the green card. The K-1 cannot apply for social security card, cannot apply for driver's license or work until receives the work permit, which may take about 60-90 days after you filed the adjustment of status.
K-1 visa is also a non-immigrant visa. U. S. Consulate has wide latitude in using discretion in issuing any non-immigrant visa. They can deny the visa to the fiancé if the Consul is not satisfied with the bona fides of the engagement or relationship overall.
I always suggest a safer and less expensive way to my clients which is to file the immigrant visa petition and wait for your green card turn to come.
K-1 visa and K-3 visa are totally different. K-1 is available when the marriage has not taken place and the fiancé will enter into the U. S. on non-immigrant visa and marry the U. S. citizen within 90 days. See previous article here.
K-3 visa is available to U. S. citizen spouses, of course after the marriage. It is issued to facilitate the arrival of U. S. Citizen spouses in the U. S. sooner when the immigrant visa petition process could take a long time. I am not sure if it has relevancy these days because USCIS (United State Citizenship & Immigration Service) is processing immigrant visa petitions (filed on Form I-130) rather quickly. However, in the past such visa petitions were slow to process and K-3 visa made perfect sense. It could also make a difference in the future when USCIS might divert its’ resources and I-130 process might slow down. I digress.
Again, K-1 visa is only for those who would like to marry in United States. It is important to note that from a cultural point of view girl's family in lot of countries would like to have the wedding in home country than sending the girl to another country. Different factors ranging from legitimacy of the relationship to social announcement and celebration to emotional aspect of marrying daughter off come into play.
So, it is important to discuss all of these issues among the family and evaluate where they want to do the wedding and which visa needs to be filed. If the wedding must take place in home country, and not in the U.S., K-1 is not an option. K-1 visa can take about 6-7 months in processing including petition adjudication by the USCIS and scheduling interview at the US Consulate. K-1 has to marry within 90 days of entry and apply for adjustment of status. So, the K-1 may lose about 60-90 days after entry and prior to applying for adjustment of status.
It can take about another 6-7 months for scheduling the interview and to approve the case. It means that it can take up to 9-12 months before the K-1 visa holder gets the green card. Another big factor is that parents and other family members who might want to attend the wedding in to the U. S. might not get the visa to come into the U. S. The consulate has the right to issue or deny the visa to parents in the exercise of discretion and there is not much an attorney can do to help. Such visa denial to the parents can really ruin the enjoyment and excitement.
On the other side, if immigrant visa process is followed, the spouse in foreign country may enter directly on immigrant visa within 8-11 months from any consulate and the green card will arrive in the mail within 1-3 weeks of entry. This process is less expensive. K-1 visa holder has to file for adjustment of status (green card) here in the U. S. and spend time and money on filing fees, get biometrics done and wait for employment authorization document for 3 months.
Needless to say, K-1 route is much more expensive and more time consuming to obtain the green card. The K-1 cannot apply for social security card, cannot apply for driver's license or work until receives the work permit, which may take about 60-90 days after you filed the adjustment of status.
K-1 visa is also a non-immigrant visa. U. S. Consulate has wide latitude in using discretion in issuing any non-immigrant visa. They can deny the visa to the fiancé if the Consul is not satisfied with the bona fides of the engagement or relationship overall.
I always suggest a safer and less expensive way to my clients which is to file the immigrant visa petition and wait for your green card turn to come.
Monday, November 29, 2010
K-1 Visa -marry the USC petitioner or go back
How can someone come here on K-1 visa and not marry the U. S. Citizen who sponsored him or her? Wrong question, I guess. In ever fluid relationships among human beings, anything can happen, I suppose. Let me not get carried away restrict myself to the legal side of things.
K-1 visa is a finance visa issued to fiances of USC (United States Citizen). Immigration Service known as USCIS allowed this petition so that the fiances can enter the U. S. sooner to be united with their spouses and resume family relationship. After entry into the U. S., fiance and U. S. citizen have to marry within ninety (90) days though.
If the fiance who entered on K-1 visa does not marry the U. S. citizen within ninety (90) days, then such fiance has to return to the home country.
In a recent case, Kalal v. Gonzalez, Case number 03-71354, Ninth Circuit Court of Appeals, addressed and rejected a number of arguments by Mrs. Kalal who had entered into the U. S. under K-1 visa but did not marry her U. S. Citizen fiance. The court held that Petitioner, who entered the U.S. on a K-1 visa but failed to marry the petitioning fiancé was not eligible for adjustment of status under INA §245.
Mrs. Kalal had made several strong arguments based on caselaw and written statutes (aka law). However, the court rejected them for the simple reason: the Congress passed the law and contemplated the possibility of fiance not marrying the U. S. citizen and did not allow such fiance to obtain permanent resident status by way of marrying someone else.
So, it is important to remember this law and to make sure that either you marry the U. S. citizen fiance who sponsored you or you return to the home country and then obtain new visa, immigrant or non-immigrant, based on new, or shall I say different, relationship.
It is ironic for me to note that Mrs. Kalal had entered the U. S. in June 1996 and her conditional status was denied in 2001. Immigration had made a mistake in issuing her permanent resident status in the first place. However, when she filed a petition to remove conditional status, all the problems started, leading to being placed in removal proceedings and final removal order. The decision by Ninth Circuit Court of Appeals came out recently. So it took a total of fifteen years or so for final the resolution. She can file an appeal with the Supreme Court but it will be a far fetched shot. I am not an expert in Supreme Court Appeals but know that it is pretty high legal criteria and standard.
I am sure a lot has changed since 1996 for her. She must have started a family. But nothing matters-anymore!! A simple decision has played such a havoc in her life. She should have sought and received the right advise at the time and returned to home country and then filed for permanent resident status there. Perhaps she did get the right advise and did not want to return to the home country. Only she knows what happened.
I know that most immigrants engage in following two behaviors- ask family and friend who advise based on their limited experience and 2ndly, they don't want to believe the tough advise. I hate to generalize but these two behaviors are very basic human behaviors. So, I am just stating the facts.
I think her attorney Bart Klein did a pretty good job in making arguments for her.
So, remember that sometimes tough choices in the begining might be good for the long run!!
K-1 visa is a finance visa issued to fiances of USC (United States Citizen). Immigration Service known as USCIS allowed this petition so that the fiances can enter the U. S. sooner to be united with their spouses and resume family relationship. After entry into the U. S., fiance and U. S. citizen have to marry within ninety (90) days though.
If the fiance who entered on K-1 visa does not marry the U. S. citizen within ninety (90) days, then such fiance has to return to the home country.
In a recent case, Kalal v. Gonzalez, Case number 03-71354, Ninth Circuit Court of Appeals, addressed and rejected a number of arguments by Mrs. Kalal who had entered into the U. S. under K-1 visa but did not marry her U. S. Citizen fiance. The court held that Petitioner, who entered the U.S. on a K-1 visa but failed to marry the petitioning fiancé was not eligible for adjustment of status under INA §245.
Mrs. Kalal had made several strong arguments based on caselaw and written statutes (aka law). However, the court rejected them for the simple reason: the Congress passed the law and contemplated the possibility of fiance not marrying the U. S. citizen and did not allow such fiance to obtain permanent resident status by way of marrying someone else.
So, it is important to remember this law and to make sure that either you marry the U. S. citizen fiance who sponsored you or you return to the home country and then obtain new visa, immigrant or non-immigrant, based on new, or shall I say different, relationship.
It is ironic for me to note that Mrs. Kalal had entered the U. S. in June 1996 and her conditional status was denied in 2001. Immigration had made a mistake in issuing her permanent resident status in the first place. However, when she filed a petition to remove conditional status, all the problems started, leading to being placed in removal proceedings and final removal order. The decision by Ninth Circuit Court of Appeals came out recently. So it took a total of fifteen years or so for final the resolution. She can file an appeal with the Supreme Court but it will be a far fetched shot. I am not an expert in Supreme Court Appeals but know that it is pretty high legal criteria and standard.
I am sure a lot has changed since 1996 for her. She must have started a family. But nothing matters-anymore!! A simple decision has played such a havoc in her life. She should have sought and received the right advise at the time and returned to home country and then filed for permanent resident status there. Perhaps she did get the right advise and did not want to return to the home country. Only she knows what happened.
I know that most immigrants engage in following two behaviors- ask family and friend who advise based on their limited experience and 2ndly, they don't want to believe the tough advise. I hate to generalize but these two behaviors are very basic human behaviors. So, I am just stating the facts.
I think her attorney Bart Klein did a pretty good job in making arguments for her.
So, remember that sometimes tough choices in the begining might be good for the long run!!
Saturday, November 27, 2010
Qualifications for Chapter 13 Bankruptcy
In order to be eligible for Chapter 13, basic qualifications are:
1) Income and expense test has to be met under what is known as Means Test,
2) Before filing complete the Credit Counseling for Consumers Class. Another class has to be taken after filing and before the discharge,
(3) Have sufficient regular income to meet monthly living expenses allowed by the Chapter 13 Trustee as allowed by the IRS and make a plan payment. If income does not justify or support the Reorganization plan, then trustee will object and the court will not allow confirmation of plan and also not allow BK to proceed,
(4) Have less than $307,675 of unsecured debt, and less than $922,975 of secured debt.(as of April 1, 2004), and
5) Not be a corporation, partnership, stockbroker, or commodity broker.
1) Income and expense test has to be met under what is known as Means Test,
2) Before filing complete the Credit Counseling for Consumers Class. Another class has to be taken after filing and before the discharge,
(3) Have sufficient regular income to meet monthly living expenses allowed by the Chapter 13 Trustee as allowed by the IRS and make a plan payment. If income does not justify or support the Reorganization plan, then trustee will object and the court will not allow confirmation of plan and also not allow BK to proceed,
(4) Have less than $307,675 of unsecured debt, and less than $922,975 of secured debt.(as of April 1, 2004), and
5) Not be a corporation, partnership, stockbroker, or commodity broker.
Thursday, November 25, 2010
Loan Modification or Bankruptcy
Loan Modification is the process of changing the loan program which a borrower has. It is a modification of loan contract between the lender and the borrower. It is not a right so to speak. It is really lender’s discretion.
Lenders provide no written acknowledgment of loan modification. Borrowers submit written application and documents to support loan modification. However, follow up and discussions are always verbal. I would argue that it creates an oral contract. It creates a detrimental reliance, at the very least. The situation does create a legal problem. Short of legal dispute, and obtaining records through legal methods in lawsuit, there is no evidence of loan modification.
Lenders also schedule Trustee Sale or Foreclosure date routinely and regularly through loan modification process and continually postpone the sale date in it’s’ discretion while loan modification is pending. Lender does not have to provide written notice of foreclosure date after initial (or very first) notice under the law.
Borrower, in the process of loan modification, should not take it granted that foreclosure shall be postponed again because it has been postponed once before, or many times. Keep in touch with the lender and make sure to be aware of Trustee Sale date and request postponement or you might lose your house. I know of many situations where the lender conducted the foreclosure while borrowers awaited a decision on loan modification.
If you are in such a situation where lender won’t postpone the Trustee Sale date and your income has gone down making it doubtful to begin with and your liabilities are increasing, filing bankruptcy might be a good option. Filing bankruptcy especially Chapter 13 can serve following important functions:
1. It can stay (and postpone) the Trustee Sale. Bankruptcy provides automatic stay for 120 days.
2. It can assist you wipe out consumer debts which decreases your total liability enabling you to be perhaps more eligible for loan modification. Not all lenders offer loan modification to debtors in bankruptcy or post bankruptcy though.
3. Filing Chapter 13 bankruptcy, if qualified, can help you wipe out second mortgage or lower the value of first, if the house value has gone down. Law offers such benefit through a provision called Lien Stripping. Chapter 506 of the Bankruptcy Code provides such benefit. A lien is as good as the value of the collateral. If value has gone down, then the lien is stripped to match the value of the collateral.
4. Bankruptcy allows you to pay the delinquent amount over a period of 3-5 years, depending upon the Chapter 13 Plan.
5. Buy piece of mind and start over.
So, filing Bankruptcy especially Chapter 13 might not be a bad idea specifically where you might not qualify for loan modification at all and face foreclosure. One has to qualify to be able to file for Bankruptcy. So, contact a local bankruptcy lawyer today.
Lenders provide no written acknowledgment of loan modification. Borrowers submit written application and documents to support loan modification. However, follow up and discussions are always verbal. I would argue that it creates an oral contract. It creates a detrimental reliance, at the very least. The situation does create a legal problem. Short of legal dispute, and obtaining records through legal methods in lawsuit, there is no evidence of loan modification.
Lenders also schedule Trustee Sale or Foreclosure date routinely and regularly through loan modification process and continually postpone the sale date in it’s’ discretion while loan modification is pending. Lender does not have to provide written notice of foreclosure date after initial (or very first) notice under the law.
Borrower, in the process of loan modification, should not take it granted that foreclosure shall be postponed again because it has been postponed once before, or many times. Keep in touch with the lender and make sure to be aware of Trustee Sale date and request postponement or you might lose your house. I know of many situations where the lender conducted the foreclosure while borrowers awaited a decision on loan modification.
If you are in such a situation where lender won’t postpone the Trustee Sale date and your income has gone down making it doubtful to begin with and your liabilities are increasing, filing bankruptcy might be a good option. Filing bankruptcy especially Chapter 13 can serve following important functions:
1. It can stay (and postpone) the Trustee Sale. Bankruptcy provides automatic stay for 120 days.
2. It can assist you wipe out consumer debts which decreases your total liability enabling you to be perhaps more eligible for loan modification. Not all lenders offer loan modification to debtors in bankruptcy or post bankruptcy though.
3. Filing Chapter 13 bankruptcy, if qualified, can help you wipe out second mortgage or lower the value of first, if the house value has gone down. Law offers such benefit through a provision called Lien Stripping. Chapter 506 of the Bankruptcy Code provides such benefit. A lien is as good as the value of the collateral. If value has gone down, then the lien is stripped to match the value of the collateral.
4. Bankruptcy allows you to pay the delinquent amount over a period of 3-5 years, depending upon the Chapter 13 Plan.
5. Buy piece of mind and start over.
So, filing Bankruptcy especially Chapter 13 might not be a bad idea specifically where you might not qualify for loan modification at all and face foreclosure. One has to qualify to be able to file for Bankruptcy. So, contact a local bankruptcy lawyer today.
Monday, April 19, 2010
I'm injured. Do I need to hire an Attorney?
If you have been injured in an accident that may have been someone else’s fault , and are still experiencing pain or other physical symptoms, you may want to consider consulting with an attorney. Sometimes it isn’t clear right away whether your injuries will heal right away or not.
Insurance claim adjusters generally try to settle claims for as little as possible. Therefore, if you have been seriously injured or are unsure whether you will completely recover from your injuries, you should consult an attorney before you give any statements or sign papers of any kind.
There are time limits within which you can file a legal claim, depending on what kind of case it is. Therefore, if you are considering consulting an attorney, you should do so as soon as possible, so the attorney will have time to evaluate your case and ensure you do not lose your legal rights.
Personal injury attorneys usually handle cases on a “contingent” or percentage basis, depending on the type, difficulty, and expense of the case. This means the attorney only collects his or her fee after the case is resolved. Contingent fee agreements must be in writing and include provisions for the attorney’s out-of-pocket expenses, which are typically paid by the attorney and reimbursed out of any recovery.
What makes a good personal injury Case?
A strong personal injury case requires proof of both liability and damages. Having one without the other, no matter how dramatic the facts may be, will not bring a successful result.
LIABILITY
There is liability when another person or business entity acted, in violation of the law, in such a way to cause your injuries. An example of such wrongful conduct is running a red light. There must be some evidence that the defendant was at fault, such as witnesses, photographs, or other documents.
It is also important that the plaintiff was not at fault in causing the incident. Other issues to consider include whether the plaintiff may have assumed a risk (were there signs or other warnings the plaintiff should have seen?) or waived liability (did the plaintiff sign any documents that would prevent defendant’s liability?)
DAMAGES
Damages are the injuries you sustained in the incident. They can be physical, emotional and/or financial. It is necessary to prove these damages through individuals with knowledge of your injuries or losses. You can prove damages through medical records and the testimony of doctors who treated you. Not only do you have to prove that you have these damages, you have to prove they were caused by the incident. That is, a doctor has to be willing and able to document that your injuries are directly related to the incident.
The kinds of personal injury damages recognized in California include medical expenses, lost wages or loss of earning capacity, physical pain, mental suffering, disfigurement, physical impairment, loss of consortium, and loss of household services.
COLLECTABLITY
Collectability is when the defendant can pay a judgment. A judgment is what a plaintiff is awarded when he or she wins a personal injury case. It says that someone owes you money. However, a judgment has no value if the defendant does not have enough money to pay the judgment or does not have insurance to cover the judgment. Therefore, In addition to identifying the defendant or defendants who are responsible for your injuries, it is essential that those defendants have liability insurance or is a large enough business entity that they can provide financial compensation for your damages.
TIME LIMITS
The time limits (or statutes of limitation) will vary by the kind of case. In California, a plaintiff usually has two years to file a legal claim for personal injuries. However, the time limits are different in certain cases (for example, if the plaintiff is a minor or the case is against a governmental entity). If you wait too long to bring a legal claim, you will forever lose that right.
LIABILITY
There is liability when another person or business entity acted, in violation of the law, in such a way to cause your injuries. An example of such wrongful conduct is running a red light. There must be some evidence that the defendant was at fault, such as witnesses, photographs, or other documents.
It is also important that the plaintiff was not at fault in causing the incident. Other issues to consider include whether the plaintiff may have assumed a risk (were there signs or other warnings the plaintiff should have seen?) or waived liability (did the plaintiff sign any documents that would prevent defendant’s liability?)
DAMAGES
Damages are the injuries you sustained in the incident. They can be physical, emotional and/or financial. It is necessary to prove these damages through individuals with knowledge of your injuries or losses. You can prove damages through medical records and the testimony of doctors who treated you. Not only do you have to prove that you have these damages, you have to prove they were caused by the incident. That is, a doctor has to be willing and able to document that your injuries are directly related to the incident.
The kinds of personal injury damages recognized in California include medical expenses, lost wages or loss of earning capacity, physical pain, mental suffering, disfigurement, physical impairment, loss of consortium, and loss of household services.
COLLECTABLITY
Collectability is when the defendant can pay a judgment. A judgment is what a plaintiff is awarded when he or she wins a personal injury case. It says that someone owes you money. However, a judgment has no value if the defendant does not have enough money to pay the judgment or does not have insurance to cover the judgment. Therefore, In addition to identifying the defendant or defendants who are responsible for your injuries, it is essential that those defendants have liability insurance or is a large enough business entity that they can provide financial compensation for your damages.
TIME LIMITS
The time limits (or statutes of limitation) will vary by the kind of case. In California, a plaintiff usually has two years to file a legal claim for personal injuries. However, the time limits are different in certain cases (for example, if the plaintiff is a minor or the case is against a governmental entity). If you wait too long to bring a legal claim, you will forever lose that right.
I'm injured. Do I need to hire an Attorney?
If you have been injured in an accident that may have been someone else’s fault , and are still experiencing pain or other physical symptoms, you may want to consider consulting with an attorney. Sometimes it isn’t clear right away whether your injuries will heal right away or not.
Insurance claim adjusters generally try to settle claims for as little as possible. Therefore, if you have been seriously injured or are unsure whether you will completely recover from your injuries, you should consult an attorney before you give any statements or sign papers of any kind.
There are time limits within which you can file a legal claim, depending on what kind of case it is. Therefore, if you are considering consulting an attorney, you should do so as soon as possible, so the attorney will have time to evaluate your case and ensure you do not lose your legal rights.
Personal injury attorneys usually handle cases on a “contingent” or percentage basis, depending on the type, difficulty, and expense of the case. This means the attorney only collects his or her fee after the case is resolved. Contingent fee agreements must be in writing and include provisions for the attorney’s out-of-pocket expenses, which are typically paid by the attorney and reimbursed out of any recovery.
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