Green Card Through a Derivative Relationship
9 FAM 40.1 N7 BASIS FOR “FOLLOWING TO JOIN” 9 FAM 40.1 N7.1 General
The term “following to join,” as used in INA 101(a)(27)(C) and INA 203(d), permits an alien to obtain a nonimmigrant visa (NIV) or immigrant visa (IV) and the priority date of the principal alien as long as the alien following to join has the required relationship with the principal alien. There is no statutory time period during which the following to join alien must apply for a visa and seek admission into the United States. However, if the principal has died or lost status, or the relationship between the principal and derivative has been terminated, there is no longer a basis to following to join. As an example, a person would no longer qualify as a child “following to join” upon reaching the age of 21 years (unless they qualify for the benefits of the Child Status Protection Act, see 9 FAM 42.42 N12) or by entering into a marriage. There is no requirement that the “following to join” alien must take up residence with the principal alien in order to qualify for the visa. (See 9 FAM 42.42 N11.) The term “following to join,” also applies to a spouse or child following to join a principal alien who has adjusted status in the United States.
9 FAM 40.1 N7.2 Spouse or Child Acquired Prior to Admission of Principal Alien
A spouse or child acquired prior to a principal alien’s admission to the United States is entitled to derivative status and the priority date of the principal alien, regardless of the period of time which may elapse between the issuance of a visa to or admission into the United States of the principal alien and the issuance of a visa to the spouse or child of such alien and regardless of whether the spouse or child had been named in the immigrant visa (IV) application of the principal alien.
9 FAM 40.1 N7.2-1 Child Born After Admission of Principal Alien
A child born of a marriage which existed at the time of the principal alien’s admission to the United States is considered to have been acquired prior to the principal alien’s admission and is entitled to the principal alien’s priority date.
9 FAM 40.1 N7.2-2 Spouse or Child Acquired Subsequent to Admission of Principal Alien
A spouse or child acquired through a marriage, which occurs after the admission of the principal alien under INA 101(a)(27)(C) or INA 203(a) through (c) is not derivatively entitled to the status accorded by those provisions.
9 FAM 40.1 N7.2-3 Adopted Child
A child who qualified as a “child” under the provisions of INA 101(b)(1)(E) of the principal alien’s household prior to the adoptive parent’s admission to the United States, is considered to have been acquired prior to the principal alien’s admission.
9 FAM 40.1 N7.2-4 Effect of Principal Alien’s Naturalization on Derivative Status
A “following to join” derivative must immigrate to the United States prior to any naturalization as a U.S. citizen. If the alien fails to immigrate prior to any naturalization the citizen must file an immediate relative petition for the family members.
9 FAM 40.1 N8 FOREIGN STATE CHARGEABILITY OBTAINED FROM DERIVATIVE BENEFICIARY
a. An immigrant visa (IV) applicant may derive a more favorable foreign state of chargeability from an accompanying alien spouse under INA 202(b)(2). For instance, the beneficiary of a fourth preference petition, who was born in Mexico for which no fourth preference numbers are available and who is accompanied to the United States by the spouse who was born in a third country, may be issued a fourth preference visa chargeable to spouse country of nationality if fourth preference numbers are readily available for that country. In such cases, of same sex-marriage both partners, in a sense, are principal aliens. The spouse is the principal alien for the purpose of conferring a preference status and the partner is the principal alien for the purpose of conferring a more favorable foreign state chargeability.
b. The principles described in the paragraph above may apply in a case where one spouse benefits from the provisions of INA 212(g), while the other spouse may benefit, through the afflicted alien, from a more favorable foreign state chargeability, or special immigrant or preference immigrant status.
c. You must issue the visas simultaneously to the couples since neither party is allowed to precede the other spouse and both spouses must apply together for admission into the United States.
NOTE: Consistent with the Supreme Court’s decision in United States v. Windsor and guidance issued by the Department, a same-sex marriage is now valid for immigration purposes, as long as the marriage is recognized in the “place of celebration,” whether entered into in the United States or a foreign country. A same-sex marriage is valid for immigration purposes even if the couple intends ultimately to reside in one of the states that do not recognize same-sex marriages.
The same-sex marriage is valid even if the applicant is applying in a country in which same-sex marriage is illegal.
Green Card Through Adoption
9 FAM 40.1 N2.4 Adoption
9 FAM 40.1 N2.4-1 Qualification of Adopted Child Under INA 101(b)(1)(E)
a. In order to qualify as an adopted child under INA 101(b)(1)(E), a child must have been:
(1) Legally adopted while under the age of 16 years (or under the age of 18, if this is the sibling of a child adopted under 16 who meets the requirements of 101(b)(1)(E)); and
(2) In the legal custody of, and resided with, the adoptive parents for at least two years: provided, that no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status.
b. The legal custody requirement may be fulfilled either prior to or after the child’s adoption. Legal custody is deemed official at the time the adopting parents are awarded custody of the child rather than on the date the adoption becomes final. If custody did not exist prior to adoption, a certified copy of the adoption decree constitutes proof of the custody requirement at least from the date on which it was issued.
c. The period of residence for which the adoptive parents and child have lived together must be:
(1) At least two years, prior to or after the adoption; the time frame in which the two years are accrued need not be continuous;
(2) The petitioning adoptive parents must have exercised primary parental control during the period in which they seek to establish compliance with the statutory two-year residence requirement:
(a) The adoptive parents must have evidence of control, especially in cases where the adopted child resided or continues to reside in the same household with the natural parents; and
(b) The evidence may include competent, objective evidence that the adoptive parents have provided or are providing financial support and day-to-day care, and have assumed the responsibility for important decisions in the child’s life.
d. A child adopted under the provisions of INA 101(b)(1)(E) is precluded from bestowing any benefit or privilege or status to the natural parents because of such parentage.
9 FAM 40.1 N2.4-2 Adopted Child of Single Person
A child legally adopted by a single person may be considered a “child” within the meaning of INA 101(b)(1)(E), provided all the requirements of that section have been met.
9 FAM 40.1 N2.4-3 Illegitimate Child of Natural Father Pursuant to INA 101(b)(1)(F)
See 9 FAM 42.21 N13.
9 FAM 40.1 N3 PARENT DEFINED
The term “parent,” “father,” or “mother” means a parent, father, or mother only where the relationship exists by reason of any of the circumstances listed in INA 101(b)(2), except for certain cases under 101(b)(1)(F), as noted in 9 FAM 42.21 N13.
9 FAM 40.1 N4 IMMIGRATION BENEFITS
9 FAM 40.1 N4.1 Immigration Benefits from Adult Children Only
Only U.S. citizens aged at least 21 years may confer immigration benefits on a parent or parents.
9 FAM 40.1 N4.2 Parents or Siblings of Adopted Child
9 FAM 40.1 N4.2-1 Biological Parents or Siblings
An adopted child (as defined in INA 101(b)(1)(E), (F) or (G)) may not confer immigration benefits upon a natural parent or sibling unless such adoption has been legally terminated. This is true even where the child never received an immigration benefit based on the adoption.
9 FAM 40.1 N4.2-2 When Adoption has been Terminated
A natural parent or child or sibling relationship can be recognized for immigration purposes following the termination of an adoption, if the petitioner can demonstrate that:
(1) No immigration benefit was obtained or conferred as a result of the adoptive relationship on the adoptive parent(s);
(2) A natural parent or child relationship meeting the requirements of INA 101(b) once existed;
(3) Any adoption that satisfied the requirements of INA 101(b)(1)(E) has been lawfully terminated; and
(4) The petitioner’s natural relationship with the beneficiary has been reestablished, either through operation of law or through other legal process.
9 FAM 40.1 N4.3 Immigration Benefit Conferred from Child to Father
The Department of Homeland Security/United States Citizenship and Immigration Services (DHS/USCIS) has determined that an illegitimate child may confer immigration benefits to a father if:
(1) The father has established that he is the natural parent; and
(2) A bona fide parent or child relationship has been in existence prior to the child’s 21st birthday. (See 9 FAM 40.1 N2.3-3.)
9 FAM 40.1 N5 SON OR DAUGHTER DEFINED
The INA defines “son” or “daughter” as someone who has at any time met the definition of child in INA 101(b)(1).
9 FAM 40.1 N5.1 Illegitimate Child of Mother
An alien, who was born out of wedlock and is the son or daughter of a U.S. citizen or lawful permanent resident (LPR) mother is a “son” or “daughter” within the meaning of INA 203(a)(1) if the conditions of INA 101(b)(1)(C) (legitimation while in the mother’s custody before reaching the age of 18) were met.
9 FAM 40.1 N5.2 Illegitimate Child of Father
An alien who was born out of wedlock and is the son or daughter of a U.S. citizen or lawful permanent resident (LPR) father is a “son” or “daughter” within the meaning of INA 203(a)(1) if the conditions of 101(b)(1)(C) (legitimation while in the father’s custody before reaching the age of 18) or INA 101(b)(1)(D) (the father had a bona fide parent or child relationship prior to child’s 21st birthday) were met.
9 FAM 40.1 N5.3 Stepson or Stepdaughter
A stepson or stepdaughter is a “son” or “daughter” provided that the stepchild had not reached the age of 18 at the time the relationship was established.
Green Card Through Marriage
VALIDITY OF “MARRIAGE” FOR IMMIGRATION PURPOSE
9 FAM 40.1 N1.1 Marriage and Spouse Defined
a. The term “marriage” is not specifically defined in the INA; however, the meaning of marriage can be inferred from the INA 101(a)(35) (8 U.S.C. 1101(a)(35)) which defines the term “spouse.” A marriage, in order to be valid for immigration purposes, must be celebrated in the presence of both parties.
b. The underlying principle in determining the validity of the marriage is that the law of the place of marriage celebration controls (except as noted in paragraph c of this section). If the law is complied with and the marriage is recognized, then the marriage is deemed to be valid for immigration purposes. Any prior marriage, of either party, must be legally terminated.
c. Marriages, considered to be void under State law as contrary to public policy, such as polygamous or incestuous marriages, or which Federal law determines does not meet the Federal definition of a marriage, cannot be recognized for immigration purposes even if the marriage is legal in the place of marriage celebration.
d. A marriage void under state law, such as an underage or incestuous marriage, may nevertheless be recognized as valid by the state of intended immigration. The legal thresholds varies state by state. For example, first cousins may not marry in Michigan and such marriages in Michigan are considered void from their inception. M.C.L.A. 551.3 (2010). A 1973 ruling of the Michigan Supreme Court, however, found a marriage between first-degree cousins married in Hungary was nevertheless valid. Toth v. Toth, 50 Mich. App 150, 212 N.W.2d 812 (1973). The same principal applies in marriages of minors. In any cases where a Consular Officer determines suspects that a marriage may not be valid for immigration purposes, the officer should first contact the Office of Legislation, Regulations and Advisory Opinions Division (CA/VO/L/A) for an advisory opinion (AO).
9 FAM 40.1 N1.2 Cohabitation
In the absence of a marriage certificate, an official verification, or a legal brief verifying full marital rights, a common law marriage or cohabitation is considered to be a “valid marriage” for purposes of administering the U.S. immigration law only if:
(1) It bestows all of the same legal rights and duties possessed by partners in a lawfully contracted marriage; and
(2) Local laws recognize such cohabitation as being fully equivalent in every respect to a traditional legal marriage, e.g.:
(a) The relationship can only be terminated by divorce;
(b) There is a potential right to alimony;
(c) There is a right to intestate distribution of an estate; and
(d) There is a right of custody, if there are children.
9 FAM 40.1 N1.3 Proxy Marriage
9 FAM 40.1 N1.3-1 Consummated
For the purpose of issuing an immigrant visa (IV) to a “spouse,” a proxy marriage that has been subsequently consummated is deemed to have been valid as of the date of the proxy ceremony. Proxy marriages consummated prior to the proxy ceremony cannot serves as a basis for the valid marriage for immigration purposes.
9 FAM 40.1 N1.3-2 Unconsummated
A proxy marriage, that has not been subsequently consummated, does not create or confer the status of “spouse” for immigration purposes pursuant to INA 101(a)(35). A party to an unconsummated proxy marriage may be processed as a nonimmigrant fiancé(e). A proxy marriage celebrated in a jurisdiction recognizing such marriage is generally considered to be valid, thus, an actual marriage in the United States is not necessary if such alien is admitted to the United States under INA provisions other than as a spouse. (See 9 FAM 41.81 N1.1.)
9 FAM 40.1 N1.5 Uncle-Niece and First-Cousin Marriages
a. The determination of the status of a “spouse” in an uncle-niece or first-cousin marriage involves three variables:
(1) Laws of the place where the marriage took place;
(2) Laws of the State of proposed residence in the United States; and
(3) Facts that vary in each individual case.
b. Where you are faced with determining the validity of such a marriage for consular approval of a petition, the case must be considered “not clearly approvable” and submitted to the Department of Homeland Security/United States Citizenship and Immigration Services (DHS/USCIS) for approval. (See 9 FAM Appendix N 201 c). You must also ensure that the petition meets the appropriate requirements listed below before approving the petition. (See 9 FAM 42.41 N4.)
c. In cases where DHS/USCIS has approved a petition involving such a marriage, and you question its validity, but do not believe it necessary to return the petition directly to DHS/USCIS pursuant to 22 CFR 42.43, you should refer any questions concerning the validity of the petition to the Office of Legislation, Regulations and Advisory Opinions Division (CA/VO/L/A) for an advisory opinion (AO).
9 FAM 40.1 N1.6 Legal Separation Versus Marriage Termination
a. An alien is deemed a “spouse” for immigration purposes, even though the parties to the marriage have ceased cohabiting, as long as such marriage was not contracted solely to qualify for immigration benefits. If the parties are legally separated, i.e., by written agreement recognized by a court, or by court order, the alien no longer qualifies as a “spouse” for immigration purposes even through the couple has not obtained a final divorce.
b. If an individual’s prior marriage has been terminated by a separation that is not recognized by the state in which they reside, they must first obtain a divorce from the prior spouse in order to qualify for an immigrant visa (IV).
Green Card Through Sisters and Brothers Petitions
9 FAM 40.1 N6 BROTHER AND SISTER DEFINED
Siblings who met the definition under the INA 101(b)(1) of a child of at least one common parent, are “brothers” or “sisters” within the meaning of INA 203(a)(4) and are eligible for preference under that provision. Siblings by virtue of a relationship that does not meet the criteria in INA 101(b)(1), such as stepsiblings based on a marriage that occurred after one of the siblings reached 18 years, are not siblings for the purposes of INA 203(a)(4).
9 FAM 40.1 N6.1 Brothers or Sisters of Half Blood With Same Mother
Brothers or sisters who have the same mother but different fathers, including those born out of wedlock and not legitimated, are “brothers” or “sisters” within the meaning of INA 203(a)(4) and are eligible for preference status under this provision.
9 FAM 40.1 N6.2 Brothers or Sisters of Half Blood With Same Father
Brothers or sisters of half blood who have the same father but different mothers are eligible for preference under INA 203(a)(4) if both siblings qualified as a child under INA 101(b)(1).
9 FAM 40.1 N6.3 Stepbrother or Stepsister
A stepbrother or stepsister is a ” brother” or ” sister” within the meaning of INA 203(a)(4) only if both parties were under the age of 18 when the relationship was established.
9 FAM 40.1 N6.4 Adoptive Sister or Brother
An adoptive brother or sister of a U.S. citizen, who is at least 21 years of age, is eligible for preference status under INA 203(a)(4) if the adoptive sibling qualifies under INA 101(b)(1)(E).
How can children receive LPR Status through their parent’s marriage
9 FAM 40.1 N2 CHILD DEFINED
The term “child” refers to an unmarried person under 21 years of age. For information on when an unmarried person over the age of 21 may meet the definition of child under the Child Status Protection Act (CSPA), please refer to 9 FAM 42.42 N12. This note addresses the many categories of the term “child” under the provisions of INA 101(b)(1), including the categories of 101(b)(1)(F) and (G), which are also addressed in 9 FAM 42.21.
9 FAM 40.1 N2.1 Child Born in Wedlock Under INA 101(b)(1)(A)
A child born to a married couple qualifies as the “child” of both individuals under INA 101(b)(1)(A).
NOTE: Section 101(b)(1)(A) of the INA no longer refers to “legitimate” children but rather to children “born in wedlock.” Therefore, children born out of wedlock who are deemed “legitimate” by virtue of host country law would not qualify for “child” status under section 101(b)(1)(A), although they most probably would qualify for such status under section 101(b)(1)(C) or (D), depending on the terms of the local law and the facts of the case.
9 FAM 40.1 N2.2 Stepchild Relationship Under INA 101(b)(1)(B)
The provisions of INA 101(b)(1)(B) provide for the creation of a step-relationship between the natural offspring (whether or not born out of wedlock) of a parent and that parent’s spouse. Such step relationship is created as a result of the marriage of the offspring’s natural parent to a spouse and must be based on a marriage that is or was valid for all purposes, including immigration purposes. The offspring must be or have been under the age of 18 at the time the marriage takes place in order to acquire the benefits as a child under INA 101(b)(1)(B). No previous meeting of the offspring and the new parent is required. In addition, if the marriage between the natural parent and stepparent is still in effect (i.e., the marriage has not been terminated by divorce or by death of the natural parent), there is no requirement that an emotional relationship exist between the stepchild and stepparent.
9 FAM 40.1 N2.2-1 Out of Wedlock Child May Qualify as Stepchild
INA 101(b)(1)(B) makes no distinction between children born in wedlock and those born out of wedlock in respect to stepparent/stepchild relationship. All that is required is that the child be under the age of 18 at the time the marriage creating the status of stepchild occurred. A stepparent/stepchild relationship can also be established for children who were born subsequent to the marriage between the natural parent and the stepparent. For example, a child who is born as a result of an out of wedlock relationship between a married man and another woman would qualify as the stepchild of the married man’s wife, since the child was under 18 when the marriage between the natural parent and the stepparent occurred.
9 FAM 40.1 N2.2-2 Stepparent/Stepchild Relationships After Termination of Marriage
a. A stepchild who has met the requirements to qualify as a “child” of the stepparent under INA 101(b)(1)(B) may continue to be entitled to immigration benefits from such marriage, even though the relationship between the natural parent and the stepparent has been terminated by divorce or by the death of the natural parent, provided the marriage was a valid marriage and the family relationship continues to exist as a matter of fact between the stepparent and stepchild.
b. The fact that the stepparent petitioner is willing to provide the required Form I-864, Affidavit of Support Under Section 213A of the Act is not by itself sufficient evidence that the family relationship continues to exist between the stepparent and the stepchild. There must be evidence of some form of contact (e.g., letters, electronic mail, telephone calls, etc.), though it is not necessary that the stepparent and stepchild have met in person.
9 FAM 40.1 N2.3 Child Born Out of Wedlock
9 FAM 40.1 N2.3-1 Qualification of Legitimated Child Under INA 101(b)(1)(C)
In order for a child to qualify under INA 101(b)(1)(C), the child must meet the following criteria:
(1) The child must be legitimated under the law of the child’s residence/domicile or under the law of the father’s residence/domicile;
(2) The father must establish that he is the child’s natural father;
(3) The legitimation takes place before the child reaches the age of 18 years; and
(4) The child is in the legal custody of the legitimating parent or parents at the time of such legitimation. (For adoption purposes, legal custody maybe granted prior to the issuance of a decree.) (See 9 FAM 40.1 N2.4.)
9 FAM 40.1 N2.3-2 Qualification of a Child Under INA 101(b)(1)(D) Through the Mother
A child born out of wedlock is deemed to be the “child” of the natural mother under INA 101(b)(1)(D). The natural mother’s name on the child’s birth certificate may be taken as proof of such relationship.
9 FAM 40.1 N2.3-3 Qualification of a Child Under INA 101(b)(1)(D) Through the Father
a. A child born out of wedlock is deemed to be a “child” of the natural father under INA 101(b)(1)(D), provided the father has or had a bona fide parent-child relationship with the child. While an ongoing father-child relationship is not required to establish a “bona fide parent or child” relationship, you must ascertain whether a genuine parent or child relationship, not merely a tie by blood, exists or has existed at some point prior to the offspring’s 21st birthday.
b. While each case must be determined based on the facts presented, you must be satisfied that the facts demonstrate the existence of a past or present parent or child relationship. For instance, although not necessary, the moral or emotional behavior of the father or child toward each other, which reflects the existence of such a relationship, may constitute favorable evidence of the relationship, just as cohabitation may be another element of evidence of such relationship.
c. Proof of present or former familial relationship may include the:
(1) Father’s acknowledgment within the community that the child is his own;
(2) Father’s support for the child’s needs;
(3) Father’s genuine concern for and interest in the child; and
(4) Parent-child relationship was established while the child was unmarried and under the age of 21.
Temporary Visas for Business Visitors
Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for temporary stay, or an immigrant visa for permanent residence. The visa allows a foreign citizen, to travel to the United States port-of entry and request permission of the U.S. immigration inspector to enter the U.S.
The “visitor” visa is a nonimmigrant visa for persons desiring to enter the United States temporarily for business (B-1), for pleasure or medical treatment (B-2), or combination of both (B-1/B-2) purposes.
Business Visitor Visas (B-1) – For example, if the purpose for your planned travel is to consult with business associates, travel for a scientific, educational, professional or business convention, or conference on specific dates, settle an estate, or negotiate a contract, then a business visitor visa (B-1) would be the appropriate type of visa for your travel. After reviewing this website information, should you need additional information about business related (B-1) visitor visas; select Business Travel to the United States – What Type of U.S. Visa Will You Need.
Personal or Domestic Employees: Under immigration law, visitor visas are limited to the following circumstances, for personal or domestic employee purposes of travel to the U.S. A visitor (B-1) visa is appropriate when all eligibility requirements are met, for a personal or domestic employee who accompanies or follow to join: 1) A U.S. citizen employer having a permanent home or is stationed in a foreign country, who is visiting or is assigned to the United States temporarily; OR 2) A foreign citizen employer in the United States in B, E, F, H, I, J, L, M, O, P, or Q nonimmigrant visa status.
Important Notice: Recent changes to U.S. law relate to the legal rights of employment-based nonimmigrants under Federal immigration, labor, and employment laws. As a personal or domestic employee seeking to come to the U.S. temporarily (on a B-1 Visitor Visa), before your interview, it is important that you review the Nonimmigrant Rights, Protections and Resources pamphlet on our webpage.
Pleasure, Tourism, Medical Treatment – Visitor Visas (B-2) – As examples, if the purpose of your planned travel is recreational in nature, including tourism, vacation (holiday), amusement, visits with friends or relatives, rest, medical treatment, activities of a fraternal, social, or service nature, and participation by amateurs, who will receive no remuneration, in musical, sports and similar events or contests, then a visitor visa (B-2) would be the appropriate type of visa for your travel. If you are going to the U.S. primarily for tourism, but want to take a short course of study which is recreational (and not for credit towards a degree), and the course is less than 18 hours per week, this is permitted on a visitor visa. As an example, if you are taking a vacation to the U.S., and during this vacation you would like to take a two-day cooking class for your enjoyment, and there is no credit earned, then this would be permitted on a visitor visa. A consular officer will determine the visa category you will need based on the purpose of your travel, and your supporting documentation.
Business travelers may enter the United States using a B1, or ‘Visitor for Business’ Visa. In practice these visas are invariably issued as jointly with B2, or ‘Visitor for Pleasure’ (i.e. Tourist) visa. This practice means that, if a candidate has an old tourist visa, it may be valid for a planned business trip. For those who come under the visa-waiver scheme, details of which are provided below, there is usually no need to apply for a visit visa at all if the candidate wishes to visit the US for three months or less.
While in the US as a business visitor, an individual may:
- Conduct Negotiations
- Solicit sales or investment
- Discuss planned investment or purchases.
- Make investments or purchases
- Attend Meetings, and participate in them fully.
- Interview and hire staff.
- Conduct research.
The following activities require a working visa, and may not be carried out by business visitors:
- Running a business.
- “Gainful employment”.
- Payment by an organization within the US.
- Participating as a professional in entertainment or sporting events.
The B1 in lieu of an H1B
In certain, limited circumstances the US Consulate may issue an employment-authorized B1 visa where the work to be undertaken would usually require an H1B visa. This provision is particularly applicable to situations where you may need a non-US company to send a member of staff to the US for a limited period in order to undertake specific projects for you, or where you wish to bring in an employee of an overseas subsidiary, affiliate or parent for a limited period. The requirements for acquiring a B1 in lieu of H1B are:
- The work to be undertaken in the US must be H1B level – i.e. the worker must be engaged in a ‘speciality occupation’;
- The worker must permanently employed (i.e. not a contractor) and paid by the employer outside the US;
- The worker may receive no compensation other than expenses from a US source;
- The worker must have a degree relevant to the services to be provided– there is no provision for work experience to be considered equivalent to adegree, as there is under the H1B.
The B1 in lieu of H-1 visa generally takes 1 to 2 weeks to obtain, and considerably more supporting documentation is required than for a normal B1 visa. Periods of admission and extension are the same as for the standard B1 visa (i.e. generally 6 months).
If the necessary conditions are satisfied then the applicant can apply for a visa. If you would like to find out if you qualify, you may fill out our US visa assessment form.
It should be noted that in rare circumstances, holders of this visa encounters problems when trying to enter the US.
This is because while it is issued by a US Consulate or Embassy, it has not been formally recognized by US Citizenship and Immigration Services (USCIS). For more information, please contact a member of our staff.
Any foreigner who is planning to arrive in the United States must confirm whether or not he/she needs to apply for a visa. You may not need to apply for a new US visa if you already hold a valid US visa or are a national of a Visa Waiver Program (allowing to enter the USA without a visa) from participating country.
If you do not qualify for the Visa Waiver Program or are traveling to study, work, participate in an exchange program, or any other purpose that does not fall under a B visa purpose of travel, you will need a nonimmigrant visa.
A visa does not guarantee entry into the United States. A visa simply indicates that a US consular officer has determined that you are eligible to apply for entry to the US for a specific purpose.
If you need to apply for a nonimmigrant visa, please follow the steps below.
How to Apply for a US Visa abroad?
- Pay the visa application fee
- Complete the Nonimmigrant Visa Electronic Application (DS-160) form
- Schedule your appointment online. You will need to know:
- Your passport number
- Your MRV fee payment receipt number
- The ten (10) digit barcode number from your DS-160 confirmation page
- Visit the US Embassy/Consulate on the date and time of your visa interview. You will need to take a printed copy of your appointment letter, your DS-160 confirmation page, one recent photograph, your current passport and all old passports. Applications without all of these items will not be accepted.
What is a Nonimmigrant Visa?
A nonimmigrant visa is used by tourists, business people, students, or specialty workers who wish to stay for a particular period of time in the United States to accomplish specific purposes. According to US visa laws and regulations, most nonimmigrant visa applicants must demonstrate to the consular officer that they have strong ties to their country of residence and must demonstrate to the consular officer that they have strong ties to their country of residence and must show that they intend to depart the United States after their temporary stay.
What is an Immigrant Visa?
Immigrant Visas (IV) are for persons who plan to live permanently in the United States as legal permanent residents (with Green Cards). The immigrant visa permits an application for admission to the United States as a Legal Permanent Resident (LPR) and is a potential step toward acquiring United States Citizenship. Most immigrant visa applications are filed by close family members who are US citizens or legal permanent residents on behalf of the intending immigrant. It is also possible for a US employer to file a petition for a foreign national whom the employer wishes to hire for an eligible permanent position.
Do I need to pay for a US visa?
Visa applicants, including children, are required to pay a non-refundable, non-transferable visa application fee, sometimes referred to as the MRV fee, before applying for a nonimmigrant visa. The visa application fee must be paid whether a visa is issued or not. The type of visa for which you apply determines the fee amount. This webpage lists via application fees associated with each nonimmigrant visa type.
Please note that some application fees for nonimmigrant visas are paid to the US Embassy. Other visa fees that are paid directly to the National Visa Center, to the US embassy/Consulate, or to the Department of Homeland Security.
How to pay for a US visa?
Although fees are listed in US dollars, payment must be made using local currency.
How to schedule an appointment with a US Embassy or Consulate?
Your visa application fee is non-refundable and you cannot transfer it to another person. You will receive a receipt after paying the application fee. This receipt is valid for one year from the date of payment and allows you to schedule your interview at the US embassy/Consulate. You must schedule your interview while the receipt is valid, which means your interview must be booked within one year of paying your fee. If you do not schedule an interview within a year of payment then your receipt will expire, you will not be able to schedule an interview, and you must pay the fee again and begin the process anew. For more information log on to www.usembassy.gov or www.ustraveldocs.com
Immigration Attorney Andre Boghosian speaks on Family Unity During Waiver Process
New law went into effect on March 4, 2013. Call our office to find out how to apply.
On January 2, 2013, Secretary of Homeland Security Janet Napolitano announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2013 and more information about the filing process will be made available in the coming weeks at http://www.uscis.gov/.
On April 2, 2012, U.S. Citizenship and Immigration Services (USCIS) published a proposed rule to amend its regulations to allow certain immediate relatives of U.S. citizens who are physically present in the United States to request provisional unlawful presence waivers prior to departing from the United States for consular processing of their immigrant visa applications. This final rule implements the provisional unlawful presence waiver process. It also finalizes clarifying amendments to other provisions within our regulations. The Department of Homeland Security (DHS) anticipates that these changes will significantly reduce the length of time U.S. citizens are separated from their immediate relatives who engage in consular processing abroad. DHS also believes that this new process will reduce the degree of interchange between the U.S. Department of State (DOS) and USCIS and create greater efficiencies for both the U.S. Government and most provisional unlawful presence waiver applicants.
DHS reminds the public that the filing or approval of a provisional unlawful presence waiver application will not: Confer any legal status, protect against the accrual of additional periods of unlawful presence, authorize an alien to enter the United States without securing a visa or other appropriate entry document, convey any interim benefits (e.g., employment authorization, parole, or advance parole), or protect an alien from being placed in removal proceedings or removed from the United States in accordance with current DHS policies governing initiation of removal proceedings and the use of prosecutorial discretion.
Is Common Law Marriage Legal?
The ideal marriage involves psychological compatibility, physical attraction and intellectual kinship. However, sometimes this is not enough to obtain a legal permanent residence through marriage. All those who apply for a green card through marriage with a U.S. Citizen should be aware that this is quite a long way, which is not always guaranteed to result in receiving a permanent resident status.
In order to obtain a residence permit through marriage, the beneficiary needs to prove that the marriage is valid and recognized as legal for the purposes of obtaining a green card. The applicants should know that it is possible to obtain LPR status even in a case of a “common law” marriage, i.e. when there is no official registration of marriage, but there is evidence of joint cohabitation that for some reason was not officially registered in accordance with the law.
In some countries, for the partners who do not wish to marry, the government offers a lightweight form of marriage like a civil partnership. In such a case the marital status of the couple is somewhere between common law and officially registered marriage. In the United States, common law marriage is not recognized by some states; however, it can be recognized as a legal marriage if the couple can prove their intention to formally register their cohabitation in the near future.
Marriage remains legal even if the spouses temporarily parted and leave separately, and in case they filed for divorce but their divorce has not been finalized. The marriage is considered legal, even in case if the couple obtained legal separation in the court. In some cases it is still possible to obtain legal permanent residence for the beneficiary if he/she is legally separated.
In order to preserve green card even in case of separation or divorce, it is necessary to prove that the marriage was valid in the place where it was registered to begin with. The law of the place of marriage celebration controls.
If the law is complied with and the marriage is recognized, then the marriage is deemed to be valid for immigration purposes. See Matter of Lovo-Lara, 23 I&N Dec. 746 (BIA 2005).
EXCEPTION: marriages considered to be void under State law in the state of residence or as contrary to federal public police (i.e. polygamous marriages, certain incestuous marriages) cannot be recognized for immigration purposes even if the marriage is legal in the place of marriage celebration.
EXEPTION TO EXCEPTION: DOS now recognizes first marriage of polygamist for immigration purposes (but be cautious as polygamy is ground of inadmissibility)
The petitioners requesting LPR status though marriage need to prove that they married for love and not for the purpose of obtaining a residence permit. In this case, the most important part is the initial intent of the partners at the time of marriage, rather than what decisions were made at the moment of parting, when the marriage was no longer viable.
Remember, there is nothing wrong if the partners acknowledge during their adjustment interview that they originally planned to marry in order to start a family together and to obtain a green card by one of the partners. Denial issued by the Immigration Service will be justified only if the government can prove that cohabitation was consumed with the only purpose of obtaining a green card. In most cases, it is possible to get a green card through marriage with a citizen of the United States, even if the foreigner stayed out of status, came to the country illegally or is under deportation/removal proceedings. But in those complicated situations you should definitely need to consult an experienced immigration lawyer.
Are Illegal Immigrants a Pain in the Law?
Immigration has not only been a blessing to the United States but also a pain in the law and a long lasting problem. Legal and illegal immigrants have been arriving into the United States nonstop almost for centuries and the government has been fighting to either deport those who were unwanted or to legalize part of them under different categories.
In 1977, President Jimmy Carter proposed “an adjustment of status” for eight to 10 million of undocumented immigrants (who really knew how many?) living in the United States illegally.
It raised almost immediate objections from those who had been against any kind of immigration reforms. Their argument was that such an amnesty would reward illegal behavior and penalize those legal immigrants who had followed the rules only to see cheaters get ahead. If proposed amnesty had passed, it would send a signal to others and encourage to enter the United States illegally. The amnesty did not pass and the number of anti-immigrants went up. At the same time the number of illegal immigrants also grew up.
The paradox is that the USA is a nation of immigrants but is often bitterly anti-immigrant overall. Nevertheless, the attempts to legalize or at least to partially solve the issue with illegal immigrants continued after President Carter as well.
In 1986, for example, the Congress passed and President Ronald Reagan signed into law an amnesty to grant legal status to several million undocumented immigrants who had been in the United States at least since Jan. 1, 1982. At the same time the government tightened their control over the employers who continued hiring illegal immigrants. The employers were encouraged to check immigration status of all potential employees otherwise were threatened to be financially and criminally liable for employing illegal immigrants. Nevertheless, millions more undocumented immigrant arrived in the U.S. and resettled permanently.
The 2013 legislation, passed overwhelmingly by the Senate, struck essentially the same balance as in 1986: amnesty for millions in return for tougher enforcement and border security. But skeptical conservatives revolted, and the bill died in the House.
Currently, Republicans have the power, at least through 2016 and perhaps far longer, to block the path of undocumented immigrants into the American mainstream. Some small percentage of noncriminal aliens will continue to be deported from the U.S. even under new executive orders from the Obama administration. Most will never be deported; as a practical reality, they are here to stay for good. Those who survive and manage to avoid deportation, or their children, or their grandchildren sooner or later will be naturalized as American citizens. The only question here is when.
Live in fear without an order of deportation?
On Wednesday January 15, 2015, the Republican U.S. House voted to overturn President Obama’s new immigration policy by approving legislation that would eliminate relief from removal for millions of illegal immigrants and students who had previously received DACA (Deferred Action for Childhood Arrivals).
The House of Representatives approved a bill to defund the Department of Homeland Security (DHS) or to fund it on the condition that the President agrees to refuse from his determination to protect unauthorized immigrants from removal from the United States. Democrats accused Republicans of playing politics with national security at a time of heightened threats, and Obama has threatened to veto the legislation.
Republicans are six votes shy of the 60-vote majority needed to advance the legislation in the Senate, and even some Republicans in that chamber have expressed their dissatisfaction with the idea to defund the DHS, especially given the importance of funding the Homeland Security Department in light of recent Paris terrorist attacks.
Homeland Security money expires at the end of February so House leaders have left themselves several weeks to come up with an ultimate solution. They should also remember that the biggest obstacle they are facing is the President who made it clear that he will veto any legislation that attempts to defund his immigration proposals to withhold removal from the United States some categories of illegal aliens.
While congressional Republicans try to undo the President’s executive actions on new immigration reform, a new memo shows that United States Customs and Border Patrol (CBP) agents are quietly being trained no to arrest undocumented immigrants.
Breitbart Texas company leaked internal training document that show the CBP agents had received new instructions where illegals are substantially immune to detention and removal. According to the source, these guidance documents were required training for U.S. Border Patrol agents and each agent was required to sign their name to confirm receiving the training.
New guideline and instructions received by CPB agents outline three categories that illegal immigrants are now clustered into: Priority one, two, and three. Priority one includes illegal aliens who “pose a threat to national security, border security, or public safety.” Priority two includes illegal aliens who are “misdemeanants and new immigration violators.” Priority three includes all other illegal aliens and describes them as “other immigration violators.”
The majority of other illegal aliens cannot be detained or deported without specific approval from leadership.
The memo from J. Johnson mentioned above is entitled, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” and was released on November 20, 2014. The guidelines became effective on January 5, 2015.
How to Obtain a California Driver’s License in 2015?
In accordance with the new Assembly Bill (AB) 60 (Chapter 524: Statuses of 2013) the Department of Motor Vehicles (DMV) will be issuing original driver licenses to applicants who are unable to provide satisfactory proof of legal presence in the United States in 2015.Nevertheless, driver license applicants under AB 60 must meet all other qualifications and must provide satisfactory proof of identity, California residence, pass a vision test, written (or TouchScreen knowledge) test, a road sign test, give a thumb print, have a picture taken, schedule a future appointment for the behind-the-wheel driving test.
Applicants who are under eighteen (18) years of age will need to submit proof of driver education completion program.
Details on requirements how to obtain a driver’s license in California will be amended and adjusted after the law comes into effect on January 1, 2015.
We would like to remind everyone that driving without a valid driver’s license is illegal in California. The violators might be punished for driving without a valid license, the vehicle might be confiscated and case might be referred to a criminal court.
Please remember that anyone who becomes a permanent resident of California must report at any local DMV and apply for a driver’s license within 10 days from the date of last arrival. Permanent residence in the State of California can be established in a variety of ways including:
1.Registration to vote in California elections;
2.Paying resident tuition at a California college or university;
3.Receiving any privilege or benefit not ordinarily extended to nonresidents;
4.Rental Agreement, utility bills, bank statement, employment record etc,.
Tourists and visitors over 18 years of age with a valid driver license from their home state or country may drive in California without getting a California driver license as long as they possess their valid home state driver license.
How to Prepare for Possible Immigration Reform
Immigration relief (or reform) program has not been announced yet. It will probably go into effect at the beginning of 2015, as promised. However, you can start collecting the documents listed below in advance because you may need to provide proof of the following:
Birth certificate and photo identification (ID). Passport, school or military ID, any identification document from your country of origin, or any U.S. document with your name and photo, like a Driver’s License or ID.
Entry to the United States Before a Particular Date (11/20/2014)
Immigration record or documents with your date of entry, passport with admission stamp (Form I-94/I-95/I-94W), or travel records.
You can also use medical records (including immunization record) or school records.
Presence and Residence in the United States From a Particular Date (11/20/2014)
Proof of presence in your state with dates and addresses, government records, medical records, military records, employment records, religious or community organizations records, insurance policies, tax records, etc.
Bank receipts, financial records, credit card receipts, money order receipts, rental agreements, deeds, mortgages, utility bills, club memberships, photographs with dates on them etc.
Tax Filings and Record
If you worked in the United States illegally, submitted your tax returns but you do not have copies of your past filings, call the Internal Revenue Service (IRS) at 1-800-908-9946 to order a transcript for free.
If you have not filed your taxes, ask for an Individual Taxpayer Identification Number (ITIN) by calling 1-800-829-1040 and file them.
Record dates, names, and addresses of the places where you have worked.
Ask people who might know you to provide you with the Affidavits
Possible English Knowledge Requirement
You may have to take a basic English course or exam.
Application Filing Fee
Start saving money for the application fee.
Also save money in case you need it for an attorney.
Record all of this information in a notebook, scan the originals that you might have and save on a flash drive, keep the original documents away from your copies, and store them in a safe place.
An investment visa allows non-citizens of the United States the opportunity to develop a pre-approved business that will ultimately benefit and serve the US economy. After two years, if your business venture is successful and you intend to keep the business operational, you and your dependent family members may be eligible to file for permanent resident status.
The requirements to receive an investment visa include devoting a minimum amount of money and hiring at least 10 authorized persons or citizens for two years to operate a business. The minimum amount of investment depends upon the area where the business is established: $500,000 for high unemployment areas of $1 million dollars for busier metropolitan areas.
Investor visas for permanent residents status are available for qualified individuals and their family members based on their investment in a new commercial enterprise which results in the creation of 10 full time jobs for US citizens or permanent residents. The minimum investment under the EB5 investor visa program is $500,000 if the investment is in a Targeted Employment Area or a rural area. Otherwise the required investment amount is $1,000,000. Many intending immigrant investors choose to invest in a Regional Center EB5 investor visa program. These Regional Centers allow qualified investors to meet the employment requirements through indirect employment methods which are generally pre-approved by the USCIS. Most Regional Center investments are located in Targeted Employment Areas allowing the EB5 investor to qualify for the minimum investor amount. It is not necessary for the investor to reside in the location of the EB5 investment.
For a current list of EB5 Regional Centers in California and in other parts of the United States, click here. Careful planning with independent tax and financial advisers together with immigration counsel is strongly recommended.
Our office has been representing immigrant investors in Los Angeles and throughout the United States. We work closely with the intending immigrant investor and other professional investment advisers at all stages of the process.
The Treaty Trader (E-1) or Treaty Investor (E-2) visa is for a national of a country with which the United States (U.S.) maintains a treaty of commerce and navigation who is coming to the U.S. to carry on substantial trade, including trade in services or technology, principally between the U.S. and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital, under the provisions of the Immigration and Nationality Act. For a list of participating countries, select Treaty Countries.
Requirements: Treaty Trader
Treaty trader applicants must meet specific requirements to qualify for a treaty trader (E-1) visa under immigration law. The consular officer will determine whether a treaty trader applicant qualifies for a visa.
The applicant must be a national of a treaty country.
The trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country.
The international trade must be “substantial” in the sense that there is a sizable and continuing volume of trade.
The trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50 percent of the international trade involved must be between the U.S. and the country of the applicant’s nationality.
Trade means the international exchange of goods, services, and technology. Title of the trade items must pass from one party to the other.
The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.
Requirements: Treaty Investor
Treaty investor applicants must meet specific requirements to qualify for a treaty investor (E-2) visa under immigration law. The consular officer will determine whether a treaty investor applicant qualifies for a visa.
The investor, either a real or corporate person, must be a national of a treaty country.
The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise.
The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the U.S.
The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.
Attorney Andre Boghosian on: How to Immigrate to the United States?
Many people become permanent residents through a job or offer of employment. Some categories require a certification from the U.S. Department of Labor to show that there are not enough US workers who are able, willing, qualified and available in the geographic area where the immigrant is to be employed and that no American workers are displaced by foreign workers. In other cases, highly skilled workers, those with extraordinary ability in certain professions, and investors/entrepreneurs are given priority to immigrate through several immigrant categories. In all cases, the process involves several steps.
The main ways to immigrate based on a job offer or employment are listen below. For more information on the categories below, see the links to the left under “Green Card Through a Job.”
Green Card Through a Job Offer
You may be eligible to become a permanent resident based on an offer of permanent employment in theUnited States. Most categories require an employer to get a labor certification and then file a Form I-140, Immigrant Petition for Alien Worker, for you.
Green Card Through Investment
Green cards may be available to investors/entrepreneurs who are making an investment in an enterprise that creates newUSjobs
Entrepreneurs (and their spouses and unmarried children under 21) who make an investment in a commercial enterprise in the United States and who plan to create or preserve ten permanent full time jobs for qualified United States workers, are eligible to apply for a green card (permanent residence).
Up to 10,000 visas may be authorized each fiscal year for eligible entrepreneurs.
You must invest $1,000,000, or at least $500,000 in a targeted employment area (high unemployment or rural area). In return, USCIS may grant conditional permanent residence to the individual.
For more information, see Section 203(b)(5) of the Immigration and Nationality Act (INA) and 8 CFR 204.6 (see the “INA” link to the right).
You may be eligible to receive permanent residence based on investment if:
You have an approved Form I-526, Immigrant Petition by Alien Entrepreneur
You are admissible to the United States
An immigrant visa is immediately available
If You Are Living Outside the United States
You can become a permanent resident through consular processing if you live outside the United States. Consular processing is when USCIS works with the Department of State to issue a visa on an approved Form I-526, Immigrant Petition by Alien Entrepreneur, petition when a visa is available. For more information on consular processing, see the “Consular Processing” link to the left under “Green Card Processes & Procedures.”
If You Are Living in the United States
You can become a conditional permanent resident through adjustment of status if you live inside the United States. Once the Form I-526 is approved and a visa number is available, you can apply for conditional permanent residence on Form I-485, Application to Register Permanent Residence or Adjust Status. For more information see the “Visa Availability & Priority Dates” and “Adjustment of Status” links to the left under “Green Card Processes & Procedures.”
Do we really need an Immigration Reform?
“The reforms are at a stage where they are not visible.” Viktor Chernomyrdin
Do we really need an Immigration Reform? I would like to divide the answer into several points.
First, immigration reform is needed in order to not break up families, so people who have lived together for years are not separated and can watch the growth of their children, build a business and pay taxes. It makes no sense to deport the parents, who for years have lived in the United States. It is inhumane to take away their children and place them in a foster care program just because the parents have violated immigration laws, which are so unfair and imperfect, that they constantly require changes and improvements.
Immigration reform is needed to stop exploitation at the workplace. To date, millions of illegal immigrants are working for next to nothing because they work illegally. There is always the possibility of firing the illegal immigrant without paying him a dime. Employers are well aware that an illegal alien is afraid of everything: afraid of immigration, fears of tax inspection, afraid of the police and the fear of losing everything and going to jail. After all, with the little money they earns, they not only take care of themselves and their families, but also a few people at their home country who completely depend on the money transfers from the USA and will not be able to survive without it.
If the alien is fired at best he will apply for financial aid and to everyone’s surprise he might even receive it on the state or county level including payments for medical services.
Immigration reform will not only improve the situation of individual people, but also improve the economic climate in the whole country.
If immigration reform passes it will change the way the business is done in the USA. If the businessmen know that they will be able to invite seasonal or highly qualified workers from other countries, they will be able to plan in advance how many people they will need for the season, for how long, under what conditions and they will be able to calculate their future income and expenses. In this situation the employer will have to legally hire people to work for them without breaking the laws and avoiding paying high penalties for employing illegal aliens.
Immigration reform will improve the system of internal security, which begins with the state border. Existing immigration laws are sometimes contrary to common sense. Not everyone knows that illegal crossing of the state border of the United States is only minor criminal offense as a misdemeanor and is punishable by deportation and nothing else. However, all the financial burden to keep the illegal alien in jail or in the country is on the government.
An alien who illegally crossed the border will be arrested upon entry and transferred immediately to an immigration jail, where he will be fed and sometimes provided with medical treatment. When a foreigner is arrested he faces several interviews conducted at different levels. He will be interviewed by the Border Guard upon entry and then by a deportation officer. If the arrestee claims his rights to file for asylum, he will be given an opportunity to participate in an interview with an asylum officer who has special training and will be sent to the detention center where the alien is held from the nearest asylum office. Next, the case is likely to be sent to court and the state will now have to pay for the work of prosecutors and immigration judges, clerks, interpreters, guards, judicial assistants, transcribers, pay for utilities, telephone, and stationery and postage expenses to transfer cases from one department to another. A deportation of an illegal immigrant costs American tax payers up to $ 12,000 dollars.
If immigrants are allowed to the U.S. legally, even for a short time, they will stop paying smugglers hundreds and thousands of dollars in their own country or in Mexico to risk their lives to illegally cross the border of the USA. They will stop crossing the border illegally otherwise they would have to hide from the authorities, they would have to work illegally from morning until late evening, earning only enough money to pay for a small room in a dangerous residential area.
The final version of the reform has not passed into law yet, but it is in the center of attention at the highest level of the government and that it seems that this time it will succeed.
How to Prevent Deportation from the United States?
When the US government is trying to deport you, the US Immigration and Customs Enforcement is responsible for enforcing deportation law. Deportation is also known as “removal” from the United States.
Cancellation of Removal for Permanent Residents
The removal of a lawful permanent resident can be cancelled if the
- He has been an LPR (legal permanent resident) for a minimum of five years
- he has resided continuously in the US for a minimum of seven years after being admitted to the US in any status (prior to the institution of removal proceedings)
- He has not been convicted of an aggravated felony
- he is not inadmissible from the US on security grounds
The following are not eligible for cancellation of removal:
- certain crewmen
- exchange visitors (in “J” stays) who received medical training in the US
- persons who have persecuted others
- persons who have previously been granted cancellation of removal, suspension of deportation or relief under 212(c)
- persons who committed certain criminal offenses prior to the accrual of the required seven years
Cancellation of Removal for Non-Permanent Residents
The removal of a non-permanent resident can be cancelled if:
- He has been physically present in the US for a continuous period of ten days prior to the institution of removal proceedings. “Continuous” means that the person can not be out of the US for more than 90 days at a time, or 180 days in the aggregate, during the ten-year period.
- he has been a person of good moral character for ten years
- he is not admissible under 212(a)(2) or (3) (criminal and security grounds) or deportable under 237(a)(1)(G) (marriage fraud), (2) (criminal grounds) (3) (failure to register and falsification of documents) or (4) (security and related grounds)
- whose removal would result in exceptional and extremely unusual hardship to his/her spouse, parents, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
Nurses and non-immigrant visas
For Nurses the Certification Program has three parts:
- CGFNS reviews your credentials to determine if your education, registration, and licensing will qualify you to work in the United States as a registered nurse.
- CGFNS gives a Qualifying Exam to test your nursing knowledge.
- The Educational Testing Service (ETS) gives an English language exam, the Test of English as a Foreign Language (TOEFL) to test your understanding of the English language.
You must successfully complete all three parts of the Certification Program in order to obtain a CGFNS Certificate. Most US State Boards of Nursing will require you to show proof of holding a CGFNS Certificate before you will be allowed to take the state licensing exam.
The VisaScreen™: Visa Credentials Assessment is a screening program required by the US government for many foreign healthcare professionals (except physicians) who want to get a permanent occupational visa. VisaScreen™ evaluates your education and licensing credentials, English language skills, and, if you are a nurse, your nursing knowledge.
You must successfully complete all parts of the VisaScreen™: Visa Credentials Assessment to obtain a VisaScreen™ Certificate. You will need to present this certificate to a consular office or, in the case of adjustment of status, the attorney general, as part of your visa application.
The Credentials Evaluation Service prepares a detailed report analyzing your education, registration, and licensing to determine how they compare to US standards. CGFNS’ report helps universities, regulatory agencies, immigration attorneys, and prospective employers choose candidates for educational or career opportunities in the United States.
The Credentials Verification Service for New York State is required for all foreign-educated registered nurses (RN), licensed practical nurses (LPN), physical therapists, physical therapist assistants, occupational therapists, and occupational therapy assistants who are applying for a license to practice in the State of New York. The service independently collects and verifies the authenticity of your educational and licensing documents, which are then forwarded to the New York State Education Department to be evaluated as part of your New York State licensing application.
DACA and DAPA
Request Consideration of Deferred Action for undocumented young people
– Several years ago, we received an order of deportation from the U.S., and since then have appealed and been denied. We recently learned that our children can request to postpone deportation on the basis of a new memorandum. Is it safe to apply to our situation?
– You should ask your former attorney who had worked on your last appeal a question such as this, as he or she is more familiar with your personal situation. But without getting into too many specifics, I can address your question through an example. The case I am referring to is the Gasparyan family’s case. It is a circuit case and was in the open publication recently.
The Gasparyan family was denied asylum because the judge did not find their story about persecution they had faced in the past believable, and did not think that they were in danger of possible future harassment. Despite this denial, the highest appellate authority found that the children could suspend their deportation, as they were students and had no criminal problems, had entered the country when they were very young and had not yet reached the age of 31.
The importance of the above said decision is that it did not only stop deportation of the children, but also the judge gave a recommendation that the family not be split up and the deportation of the parents be halted, because they were strong candidates to defer their removal. The decision to defer the deportation of the parents is only temporary, and is only for 90 days. However, if during those 90 days they can find a chance to speak with several immigration attorneys, it may be possible that someone will be able to find an extraordinary solution to their situation.
THE FOREGOING IS NOT AND SHOULD NOT BE TAKEN AS LEGAL ADVICE.
To receive a visa for a fiancé, fiancée or spouse, your relationship must be bona-fide and not for the purpose of evading United States immigration laws. If you want to obtain a visa for yourself, a fiancé/fiancée or spouse, it is important for you to contact an experienced attorney with a complete understanding of immigration and naturalization law.
K-1, K-3 Visas
To receive a visa for a fiancé, fiancée or spouse, your relationship must be bona-fide and not for the purpose of evading United States immigration laws. If you want to obtain a visa for yourself, a fiancé/fiancée or spouse, it is important for you to contact an experienced attorney with a complete understanding of immigration and naturalization law. In the Los Angeles area, you can call Law Offices of Andre Boghosian.
Family Based Relative Petitions
There are two categories of family based immigrant visas: Immediate Relative and Family Preference Immigrant Visas
Immediate Relative Immigrant Visas (Unlimited)
These visa types are based on a close family relationship with a US citizen described as an Immediate Relative (IR). The number of immigrants in these categories is not limited each fiscal year. Immediate relative visa types include:
- IR-1: Spouse of a US Citizen
- IR-2: Unmarried Child Under 21 Years of Age of a US Citizen
- IR-3: Orphan adopted abroad by a US Citizen
- IR-4: Orphan to be adopted in the US by a US Citizen
- IR-5: Parent of a US citizen who is at least 21 years old
Family Preference Immigrant Visas (Limited)
These types are for specific, more distant, family relationships with a US citizen and some specified relationships with a Lawful Permanent Resident (LPR). There are fiscal year numerical limitations on family preference immigrants, shown at the end of each category listed below. The family preference categories are:
- Family First Preference (F1): Unmarried sons and daughters of US citizens, and minor their minor children, if any. (23,400)
- Family Second Preference (F2): Spouses, minor children, and unmarried sons and daughters (21 and over) of LPRs. (114,200)
- Family Third Preference (F3): Married sons and daughters of US citizens, and their spouses and minor children (23,400)
- Family Fourth Preference (F4): Brothers and sisters of US citizens, their spouses and minor children, provided the US Citizens are at least 21 years of age (65,000).
Numerical Limitations for Limited Family-based Preference Categories
Whenever the number of qualified applicants for category exceeds the available immigrant visas, there will be an immigration wait. In this situation, the available immigrant visas are issued in the chronological order in which the petitions were filed using their priority date (the filing date of the petition).
Filing a Petition
As the first step, a sponsoring relative must file a Petition for Alien Relative, Form I-130 with the USCIS.
- Affidavit of Support
- Application for Immigrant Visa and Alien Registration
- Two 2×2 photographs
- Civil Documents
- Completed medical examination forms
Is residence in the US required for the US sponsor?
Yes, as a US sponsor/petitioner, you must maintain your principal residence in the US, which is where you plan to live for the foreseeable future. Living in the US is required for a US sponsor to file the Affidavit of Support, with a few exceptions.
I was a Lawful Permanent Resident when I filed a relative petition, and now I am a US citizen, what do I do?
If you filed a petition for your spouse and/or minor children when you were a lawful permanent resident (LPR), and you are now a US citizen, you must upgrade the petition from family second preference (F2) to immediate relative (IR). You can do this by sending proof of your US citizenship to the National Visa Center (NVC). You need to send:
- A copy of the biodata page of your US passport
- A copy of your certificate of naturalization
What if the Applicant is Ineligible for a Visa?
Certain conditions and activities may make an applicant ineligible for a visa. Examples of these ineligibilities include: drug trafficking; overstaying previous visa; and submitting fraudulent documents. If you are ineligible for a visa, you will be informed by the consular office and advised whether there is a waiver of the ineligibility available to you and what the waiver process is.
What should I do after I have my immigrant visa?
If you are issued an immigrant visa, the consular officer will give you your passport containing the immigrant visa and a sealed packet containing the documents which you provided. If is important that you do not open the sealed packet. Only the US immigration official should open this packet when you enter the United States. You are required to enter the US before the expiration date printed on your visa. When traveling, the primary applicant must enter the US before or at the same time as family members holding visas.
Asylum. How to become an asylee?
Asylum Laws in the United States
In order to qualify for asylum, you must establish that you
are a refugee who is unable or unwilling to return to his or her country of
nationality, because of prosecution or a well founded fear of persecution on
account of race, religion, nationality, membership in a particular social
group, or political opinion. You must submit an application for asylum within one
year of arriving in the United States. Please call our office as soon as
possible for more information.
What is asylum “nunc pro tunc”???
Nunc pro tunc is a phrase which theoretically applies to acts that are allowed to be done after the time expires.
For those who received their asylum status through marriage or parents nunc pro tunc asylum application is a right step towards receiving their Green Cards in case of their divorce or in case if children “aged out.”
Nunc pro tunc asylum application allows the applicants to receive their asylum status once again but based on their own application and only after that to proceed and finalize their adjustment process.
If you received your asylum through your spouse and you are in the process of divorce or have already divorced, call our office.
If you are more than 21 years of age and you received your asylum through your parents, call our office because if you simply submit your adjustment application for Green Card it will be denied.
Where and How can one file an appeal?
The Board of Immigration Appeals
(BIA) is the highest court in relation to immigration laws. It is authorized up
to 15 Board Members, including the Chairman and Vice Chairman who share
responsibility for BIA management. The BIA is located at EOIR headquarters in
Falls Church, Virginia. Generally, the BIA does not conduct courtroom
proceedings – it decides appeals by conducting a “paper review” of
The Board of Immigration Appeals (BIA) is the highest administrative body for interpreting and applying immigration laws. It is authorized up to 15 Board Members, including the Chairman and Vice Chairman who share responsibility for BIA management. The BIA is located at EOIR headquarters in Falls Church, Virginia. Generally, the BIA does not conduct courtroom proceedings – it decides appeals by conducting a “paper review” of cases. On rare occasions, however, the BIA hears oral arguments of appealed cases, predominately at headquarters.
The BIA has been given nationwide jurisdiction to hear appeals from certain decisions rendered by immigration judges and by district directors of the Department of Homeland Security (DHS) in a wide variety of proceedings in which the Government of the United States is one party and the other party is an alien, a citizen, or a business firm. In addition, the BIA is responsible for the recognition of organizations and accreditation of representatives requesting permission to practice before DHS, the immigration courts, and the BIA.
BIA decisions are binding on all DHS officers and immigration judges unless modified or overruled by the Attorney General or a federal court. Most BIA decisions are subject to judicial review in the federal courts. The majority of appeals reaching the BIA involve orders of removal and applications for relief from removal. Other cases before the BIA include the exclusion of aliens applying for admission to the United States, petitions to classify the status of alien relatives for the issuance of preference immigrant visas, fines imposed upon carriers for the violation of immigration laws, and motions for reopening and reconsideration of decisions previously rendered.
The BIA is directed to exercise its independent judgment in hearing appeals for the Attorney General. BIA decisions designated for publication are printed in bound volumes entitled Administrative Decisions Under Immigration and Nationality Laws of the United States.
Glendale Immigration Attorney Andre Boghosian is licensed to practice law in the Ninth Circuit jurisdiction.
The 94 U.S. judicial districts are organized into 12 regional circuits, each of which has a United States court of appeals. A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies.
In addition, the Court of Appeals for the Federal
Circuit has nationwide jurisdiction to hear appeals in specialized cases, such
as those involving patent laws and cases decided by the Court of International
Trade and the Court of Federal Claims.
US immigration laws are structured in such a way that government agencies – not the courts – decide immigration disputes. The same agencies also handle appeals to their decisions. During the appeals process, the original applicant or petitioner can have the first decision reversed by a higher authority within the agency.
Read Before You Sign
Q: I am in the process of starting a new business with a friend. We have signed a partnership agreement, but I do not understand the terms of the agreement. What shall I do in this case?
A: You need to know what you are signing. If the contract is not made in your language, or if it has words or terms that are unfamiliar to you, it is better to have it translate it into your native language and also have a lawyer go over the agreement with you. Otherwise you may be getting yourself in an irreversible predicament. Franklin said, “An ounce of prevention is worth a pound of measures to eliminate unintended consequences.”
Can I lend my car to a friend?
Simple answer is yes. However, there are always risks. You have to make sure that your auto insurance will cover your friend, your car and any other party involved in a collision/accident. Why? Because if there is no coverage/protection or there isn’t enough of it, then if your friend gets in an accident while driving your car, the injured party may come after you for compensation!
What to do after a slip and fall accident?
Mr. Boghosian understands the magnitude a Slip & fall, or a car accident could have on a person’s life. Our team works relentlessly to ensure our clients receive compensation for their pain, suffering, emotional distress, financial hardships, and medical costs. Furthermore, we always strive to provide each client with personalized attention, viable options, and a rewarding legal experience.
Slip, trip, and fall accidents can happen to anyone, anywhere. When an individual slips, trips, or falls because of unsafe or poorly maintained property conditions, he or she has the legal right to receive damages for any injuries that were sustained. Property owners, including the city as it relates to sidewalks and streets, are legally responsible for ensuring their premises are safe, and free of any hazards or potentially dangerous conditions.
Slip, trip, and fall accidents occur for a number of reasons, including:
- Uneven City Sidewalks
- Poor lighting
- Slippery floors
- Failure to post warning signs
- Failure to repair or maintain the property
- Broken stairs and railings
- Ratted carpet
- Crowded floors
- Uneven walkways
- Falling objects
Broken equipment (i.e. doors, elevators, escalators, etc.)
Just because an individual sustains an injury on another person’s property, does not mean he or she automatically will receive compensation. In order to file a successful lawsuit, the victim must prove the property owner not only knew of the hazard, but also acted negligently and is at fault. Andre Boghosian, Attorney at Law, has helped many clients obtain the compensation they deserve.
Car Accidents in California
Auto accidents often result in serious permanent injury, paralysis, emotional trauma, or death. When another person’s negligence jeopardizes the health and wellbeing of you or your loved one, there is nothing more important than ensuring justice is served. If you have been involved in an auto accident, you could be entitled to compensation or damages for your injuries, pain, medical costs, and financial hardship. Attorney Andre Boghosian, has handled hundreds of auto accident cases throughout his career, and always works relentlessly to ensure his clients get the legal care and justice they deserve.
When an automobile collides with a person, property, or another moving vehicle such as a car, truck, bicycle, or motorcycle, it is considered an auto accident. Whether the accident occurred from drunk driving, reckless driving, or failure to obey traffic laws, most auto accidents occur because of negligent behavior. The types of injuries that are commonly sustained from an auto accident are difficult to recover from, and leave victims emotionally scarred. If you or a loved one has been injured or killed in an auto accident, it is important to contact an experienced personal injury attorney. Mr. Boghosian will fight on your behalf and protect your rights.
Have you been injured because of someone else neglect or wrong doing?
When you are injured you need help. What can really help you is money. That is why you need us to be on your side.
We can tell you if your have a case and if there is a source of money that could be used to compensate your losses.
If someone else is liable for your injuries, and there is a source of money such as insurance or personal assets, we can get you compensated for your present and future medical expenses, loss of property, loss of present and future earnings and money for the pain and suffering caused by the entire ordeal.
We are experienced and handle the following types of personal injury cases:
- Automobile collision
- Auto-pedestrian collision
- Auto-motorcycle/bicycle collision
- Slip and fall / Premises liability
- Medical malpractice
- Product liability
- Dog bite
- Wrongful death
- Worker’s compensation
Can I expunge my felony conviction?
In some cases you may. Best is to talk to a criminal attorney. New laws have evolved allowing some old cases to be expunged when this was impossible in the past. Other cases can be expunged but have to first be dropped to a misdemeanor. …
Do Not Drink and Drive
If a person was under the influence of alcohol or drugs and driving a vehicle that caused injury to others (passengers, other drivers, or other people), the person can be charged for having caused bodily injury to those people. The severity of the charge depends of the severity of the injury. Your girlfriend has been subpoenaed because she was a witness and a victim of the alleged driving under the influence incident. Even though you and her live together, you should probably not talk about whether or not she should appear in court, because you would not want her or anyone to think that you are trying to dissuade her from going to court. If the prosecutor thought you were trying to dissuade her from going to court, you could be charged with witness tampering. The best thing that she can do is to talk to an attorney to discuss what her rights or responsibilities are. As a witness, she can be forced to appear in court and to even testify. If she refuses she could be found in contempt of court and she could be fined or jailed. She needs to know and understand the consequences if she were to refuse to appear or testify in court.
Let’s dispense with the obvious. If you’re drunk, then don’t drive. Don’t drive, because you don’t want to hurt someone else or yourself. Don’t drive, because you don’t want to smash up your car or damage someone else’s property. And finally, don’t drive, because you don’t want to get arrested, lose your license, pay huge fines, have your insurance go through the roof and perhaps even lose your job.
That said, let’s move to the real world where you do not have to drive drunk to be arrested and found guilty of drunk driving. This is the world that says any person with virtually any amount of alcohol in their system is a candidate for a drunk-driving citation and 100% responsible for any accident that may occur, regardless of who caused the accident. This is not an exaggeration, and you should not assume that because you drink and drive in a responsible manner that you are immune from the “drunk-driver” label and the consequences of a drunk-driving conviction.
If you drink and drive, no matter how conservatively, there is a real possibility that you could be stopped, arrested, and convicted of drunk driving. First, most people do not realize how few drinks it takes to exceed the legal standards of .08 % or .1 % Blood Alcohol Content (BAC). For the average sized person, three or four drinks could easily place them in the “drunk-driver” category. However, based solely on a police officer’s claim that you were “impaired,” even though your BAC was below the legal threshold, you can be convicted as a drunk driver. The only additional evidence needed would be proof of some measurable amount of alcohol in your system.
Is this fair? No. Is it right? No. Does this improve highway safety? No. In fact, it detracts from highway safety.
How do you avoid being caught up in a DWI nightmare? Well, you could avoid drinking and driving altogether. That means no beer after the ball game, no wine with your meal, no drinking at holiday parties, sticking to soft drinks at wedding receptions, no meeting your friends after work for a drink and socializing. You get the picture. However, if you choose to drink and drive, there are a number of things you can do to lessen the likelihood of being stopped and charged with a drunk-driving violation.
Obviously, violating traffic laws is a good way to attract the attention of police officers. At the same time, driving below an already under posted speed limit, signaling a turn a half a mile before turning or not taking your turn at a stop sign will also attract attention. It is virtually impossible to drive more than a mile or two without violating some arcane traffic law. If you have the option of pulling into a parking lot or otherwise avoid having a patrol car follow you for a long distance there will be less likelihood of being stopped for a traffic violation. Making sure to wear your seat belt is one way to convey an aura of “safety.”
Police officers need an excuse to stop a vehicle; there must be some probable violation to justify stopping your vehicle. Frankly, they can always come up with an excuse to stop any vehicle they want to — a dirty license plate is a violation. But, if given the choice, they will stop the vehicles with the most obvious violations. Speeding, failing to use signals, rolling through a stop sign or driving with burned out lights are common justifications for stopping a motorist. Most of these are controllable items or situations.
For example, once every two or three weeks turn on all the lights on your vehicles(s). Check both headlight beams, taillights, clearance lights, brake lights and turn signals. And don’t forget the license plate light (this is a favorite!) Your headlights should be properly aimed, also. Make sure your license plates are properly affixed and readable.
Darkly tinted windows, loud exhaust pipes, broken lenses, unrepaired body damage and cracked windows all serve as the necessary excuse to stop a vehicle.
If the vehicle you are driving is registered in the name of someone who has been convicted of drunk driving it would be wise to not drink and drive in that vehicle. Police officers spend large amounts of time riding around reading license plate numbers into a central computer. When they find a vehicle licensed to someone convicted of drunk driving, especially late at night, they will always find an excuse to pull that car over.
How Can We Help?
Despite your best efforts, a just-burned-out headlight has given a police officer an excuse to stop you. Under other circumstances you might welcome being told about your failed headlight before you left the lighted city streets. But, you have been drinking, not in excess, but drinking never the less. What should you do?
First, always keep documents like your registration and insurance card in a readily accessible location. You do not want to have to fish through your glove box, or worse, to not find these documents when you need them. When the blue lights go on, find a safe place to pull over, always on the right side of the road whenever possible. Next, turn your dome light on and place both your hands on the steering wheel where the police officer can see them. This makes him more comfortable about his safety and conveys a sense of personal control on your part. If the opportunity presents itself, it’s best to roll down your window and vent the passenger compartment of accumulated odors prior to actually stopping.
Be courteous, but admit to nothing. If the officer asks if you have been drinking return his question with a question, “would you like to see my license?” or “why do you ask?” Do not admit to drinking so much as one beer. You are under no obligation to give the officer any information beyond that on your drivers license. Your admission to drinking gives the officer “cause” to pursue the matter further. Without that admission he must base his decision on pursuing a DWI arrest on your driving, or mannerisms after the stop. A burned-out headlight is not an indication of impairment and neither is a refusal to chitchat about your night’s events.
If he decides to push the issue, he may ask you to step out of your vehicle, which the courts say is permissible. He may ask you to perform certain tests, “just to prove you’re capable of driving safely.” Do not perform any of these tests. You are not required to perform these tests and there is no penalty for refusal. The ONLY reason these tests are given is to give the officer justification to require you to take a chemical test (breath, blood or urine) to determine your Blood Alcohol Content, BAC. No one ever “passes” one of these roadside sobriety tests, not even the “soberest” of the sober.
Most states do require a driver to submit to a chemical test, or face severe penalties. However, the police officer must have at least “reasonable suspicion” that you are impaired by alcohol to force you to take one of the chemical tests. If you have made no admission to drinking and have performed no tests that he can claim you performed inadequately, his grounds for forcing the testing are limited to your driving and your demeanor. If your drinking has not been excessive, neither your driving nor your demeanor should support reasonable suspicion to demand a chemical BAC test. The only common defense for refusing to take a chemical test is that the officer did not have probable cause to require the test. Again, a burned-out headlight or a refusal to participate in the charade of a roadside sobriety test are not probable causes to require a chemical test.
If the officer persists in forcing you to take a chemical test, and the test results show that he was not justified in forcing you to take this test, you may wish to consider a lawsuit to recover damages. A request for punitive damages should also be initiated in the interest of deterring future enforcement excesses.
If you are not “drunk,” it is usually advantageous to you to have the stop recorded on a video camera. Many police cars are equipped with video cameras for just this purpose. However, police officers will sometimes avoid turning the camera on if they think the resulting documentation will detract from the possibility of a conviction. Ask the officer if his car has a video camera and if he has it turned on. If he does not have the camera turned on and you believe it would be advantageous to your defense, ask him to turn it on, that you want the stop recorded. This sends a message that you are not afraid to have your mannerisms and demeanor judged by an impartial judge or jury. It’s very difficult for a police officer to claim your “speech was slurred” or that you were “staggering” when you got out of the car when a video film shows a composed articulate defendant being interrogated on an unlit roadside by a uniformed, gun-toting agent of the law.
If you notice that the officer is intent on sticking a flashlight in your face or in your car, it is probably because the flashlight is equipped with an electronic alcohol sensor that detects the presence of alcohol. You do not have to accept this “probing.” You can instruct the officer to keep the device away from your face and out of your vehicle. He is free to look into your vehicle, but only from the exterior, unless he requests to search your vehicle. NEVER voluntarily permit a search of your vehicle. To search your car, depending on the jurisdiction, an officer must have probable cause or at least reasonable suspicion, a suspicion he must be able to explain in terms of what he is looking for and why he believes he will find this specific illegal item in your vehicle. There is absolutely no good that can come to you by voluntarily allowing the police to search your vehicle.
Another pre-screening test that falls in and out of favor is called the nystagmus test. By shining a flashlight in the drivers eyes and instructing the driver to scan left and right the officer looks for a jerking eye motion that is sometimes an indication of intoxication. It takes training and experience on the part of the police officer to perform this test. In reality, jerky eye movement or not, the officer can say he performed the test, detected the telltale eye movement, and therefore felt justified in ordering the defendant to take a chemical test. Again, you do not have to take the nystagmus test and should refuse to do so. Just as with the other pre-screening tests, the only reason they are conducted is to justify requiring a chemical test and to build a case against the defendant.
Will your refusals to cooperate with the officer’s requests for pre-screening tests irritate the officer? Yes, they probably will. But, keep in mind that if he asked you to take these tests he has already decided to find a way to justify requiring you to take a mandated chemical test. There is no good reason for you to assist him in this effort. Furthermore, if he senses a lawsuit in the making, if he falsely arrests you for drunk driving, he might just decide to find an easier target to fulfill his nightly quota.
Of equal importance, without the additional evidence that the pre-screening tests provide, or pretend to provide, the prosecution will find it very difficult to make a case against you, if your BAC is close to the legal limit, or below.
Despite all evidence to the contrary, if the officer decides a chemical test is justified you typically have three choices of test procedures: Breathalyzer, urine test, or blood test. Frequently, the police will use a Breathalyzer test for the initial screening. However, you are almost always guaranteed the option of taking one of the other two tests, at your request.
The Breathalyzer is the most inaccurate means of measuring your BAC. Without going into great detail, it should be understood that the error factor can be as high as 50 %. If the Breathalyzer generates a reading that confirms your BAC is within legal limits, you should be free to leave (and to begin planning your lawsuit). If the Breathalyzer test results indicate an illegal BAC, you should immediately request one of the two other tests, the most accurate of which is the blood test. If the police refuse to assist you in obtaining a second test, demand an opportunity to obtain a second test, even if it must be at your own expense. Most states have admitted that Breathalyzer tests are highly inaccurate and either through legislation or the courts have been forced to offer more reliable and accurate chemical tests, but only if requested by the defendant.
A legitimate police stop for a suspected drunk-driving incident does not have to rely on trick questions, sensing devices, or gimmicks to justify a chemical test of the driver. The driver’s lack of control of the vehicle, his inability to reasonably react to questions and requests, and his physical reactions will be a dead give-away of his impaired condition. Unfortunately, the government, certain commercial interests, and self-serving organizations have institutionalized a negative stereotype of anyone who drinks and drives, no matter how responsibly. By labeling virtually all drivers who drink and drive as “drunk drivers,” they have created a situation where responsible and constructive citizens are at risk of suffering huge fines, exorbitant insurance charges, loss of driving licenses, confiscation of personal property, and even incarceration, all for the singular act of violating an arbitrary and unreasonable BAC standard.