Seminar on Immigration Issues

March 20, 2004


            On March 20, 2004, the Japanese Americansf Care Fund sponsored a seminar on immigration issues in Washington, DC with Mr. Brian Mezger, immigration lawyer as the guest speaker.  Mr. Mezger explained the organizational changes related to immigration since 9/11 and focused on various means of obtaining a green card.  He also provided time to answer questions fielded by the audience.  The following is a synopsis of Mr. Mezgerfs presentation.

 

     Organizational Changes

      One of the significant changes made since the 9/11 terrorists attacks is that the Immigration and Naturalization Service (INS) no longer exists.  Since immigration is considered a security issue, INS functions are now performed partly by the United States Citizenship and Immigration Services (USCIS) and partly by the US Customs and Border Protection (USCBP) for immigration inspection at airports and other entry points.  Both agencies are under the direction of the Department of Homeland Security.  When you are in violation of immigration laws (e.g., you are caught illegally working), your case will be handled by Immigration Courts under the direction of the Department of Justice.


     Non-immigrant Visa

            Non-immigrant visa is issued for foreigners under the assumption that they do not want to remain permanently in the United States.  For visa applicants from certain countries (i.e. poor countries or countries with high rate of fraud), it may be difficult to convince the embassy staff issuing visas that their stay in the United States is temporary.  Normally, Japanese applicants should not experience this problem.  Japanese citizens benefit from a visa waiver program.  This program allows them to enter the United States without a visa and to remain in country for up to 90 days. Once entry into the US is made via the visa waiver, switching to another visa status (i.e. student status) will not be allowed while in country.  The only exception is if one marries a US citizen; you may then apply for an immigrant visa (green card) without returning to Japan.


     Immigrant Visa

            Basically, immigrant visas mean green cards, providing a person with official immigration status (legal permanent residency) in the United States.  Broadly speaking, there are three ways to obtain a green card, i.e., family-based, employment-based, and diversity lottery.

 Family-Based.  If a person is an immediate relative (i.e., parent, spouse, or unmarried child under 21 years of age) of a US citizen, he/she is able to apply for a green card regardless how long they remained illegally in the US.  It may take one to two years in processing time but there is no waiting period. 

 If a person is classed in the gpreference category g (i.e. unmarried child over 21 years of age, married child, brother or sister of a US citizen and/or a spouse or child of a green card holder) the waiting period to receive a green card can be long and in some cases may take as long as 10 years.

 Employment-Based.  Currently, there is no waiting period for employment-based visa applications.  In most cases, a person will need to obtain labor certifications from the Department of Labor (and not from the federal agency such as USCIS) in his/her local jurisdiction.  This document certifies an American or current green card holder is unwilling or unable to fill in the position in question.  This is the most difficult step in obtaining an employee-based green card and may take as much as five years in some states.  Once the Department of Labor on the state level agrees to labor certification, the Federal Department of Labor will also need to agree in order for it to issue the final labor certification.  When the labor certification is issued to the company sponsoring the personfs green card, it can support the green card application.  Certain job areas (i.e. registered nurses due to the current shortage of nurses) are exempt from labor certifications. If the position the person is seeking is deemed a national interest for the United States (mostly in scientific fields such as vital cancer research), it may also be exempt from obtaining a labor certification.  It should be noted that it is becoming more difficult to obtain a national interest waiver in recent years.

Diversity Lottery.  Every year 50,000 people will win a chance to apply for a green card.  It is estimated that about 1,000 Japanese obtain green cards through this channel.  Beginning in 2003/4 an interested person will need to apply for the lottery electronically via the Internet.  Once a person is selected, he or she has to act on green card application without delay because a green card needs to be granted before the end of September of the following year and 100,000 people will be notified as winners for 50,000 available slots.

 VAWA.  Mr. Mezger also gave an overview of the Violence Against Women Act (VAWA).  If a spouse, male or female, of a US citizen is physically or emotionally abused, he or she may self-petition for a green card without being sponsored by the US spouse.  In addition to providing proof of such abuse, he or she will have to prove that the spouse is a US citizen.  It may be difficult to do so if one has fled from an abusive situation in a hurry.  Therefore, it may be wise to have copies of the spousefs passport or birth certificate beforehand.


Additional Tips

  • Green card holders can apply for citizenship five years after the green card was issued and three years after the green card was issued if a person is married to a US citizen.
  • Legal permanent residency status (green card) can be fragile; since 1996, it is easier to have your green card revoked even for minor criminal convictions.
  • If a person is married to a US citizen for less than two years, he/she will be issued a conditional green card and will need to request that the condition to be removed after two years from the time when the green card was granted.  If they get divorced within two years of their marriage, the non-US spouse may still argue for conversion to an unconditional green card, but it could be difficult.
  • If a person is waiting for a green card while in an illegal status, do not leave the country until your green card is issued even if you have a travel document called gadvance paroleh.
  •  If you leave the United States after illegally staying for more than 180 days but less than one year, you are not allowed to enter the United States for 3 years.  If you leave the United States after illegally staying for more than one year, you are not allowed into the United States for 10 years.  This does not apply once you have a green card.
  • You may get non-immigrant visas (E visas) if you invest to start a new business in the US, typically with at least $100,000. 
Note:  As immigration policies and rules can change anytime, please consult an immigration lawyer or government websites when you make decisions concerning immigration issues.