Practice Areas and Legal Definitions

GREEN CARD OR PERMANENT RESIDENT STATUS:

A Permanent Resident is an alien admitted to the United States as a lawful permanent resident. Permanent residents are also commonly referred to as immigrants; however, the Immigration and Nationality Act (INA) broadly defines an immigrant as any alien in the United States, except one legally admitted under specific nonimmigrant categories (INA section 101(a) (15)). An illegal alien who entered the United States without inspection, for example, would be strictly defined as an immigrant under the INA, but is not a permanent resident alien. Lawful permanent residents are legally accorded the privilege of residing permanently in the United States. They may be issued immigrant visas by the Department of State overseas or adjusted to permanent resident status by U.S. Citizenship and Immigration Services in the United States.

There are several ways to immigrate to the United States and obtain a lawful permanent resident status. The two most common ways include family and employment based immigration. Immigration to the United States is also possible through application for political asylum.

I. Immigration through Family & Fiancée Visas

Fathers, daughters, mothers, sons, fiancés and other relatives can enter the United States with either an immigrant or non-immigrant visa. There are many options that are available. Parents, spouses and unmarried children under 21 years of age of U.S. Citizens are considered immediate relatives who can immigrate to the United States immediately and they are not placed under a waiting list quota system. The other types of relatives are placed into preference order which determines who is given priority entry into the United States:

• First Preference: Unmarried, adult (21 years of age or older) sons and daughters of U.S. citizens.
• Second Preference: Spouses of lawful permanent residents and the unmarried sons and daughters of lawful permanent residents.
• Third Preference: Married sons and daughters of U.S. citizens.
• Fourth Preference: Brothers and sisters of adult U.S. citizens.

An I-130 is a Petition for Alien Relative and it can be filed to bring mothers, fathers, sisters, brothers and children from abroad. Parents, spouses and unmarried children under 21 years of age of U.S. Citizens are considered immediate relatives in the first preference and are not placed under a waiting list visa quota system. All other beneficiaries in second, third and fourth preferences are placed on a waiting list. The adjudication of these preferences can take a very long time (several years) depending upon the preference ranking. The most current online visa bulletin will give those who are waiting an idea of how long they must wait for their immigration application or green card to be granted.

Fiancée Visas
For those seeking to bring a fiancé or fiancée to the United States, a K-1 visa application will allow the fiancé (e) to enter the United States. Both parties must be unmarried, legally divorced or their marriage annulled, or parties must be widowed. The marriage must take place within 90 days of entry into the United States and the fiancé’s application for adjustment of status on Form I-485 must be also filed within 90 days of entry into the United States. Once in the United States, the K-1 visa beneficiary can never change his/her status to any other status.

Conditional Resident
Any alien granted permanent-residency status on a conditional basis (e.g., a spouse of an American citizen), who is required to petition for the removal of such conditions before the second anniversary of the approval of the granting of this status.

Affidavit of Support
In order to bring a family member from abroad, petitioner must execute Form I-864 or I-134. It is a contract given by an American citizen or lawful, permanent resident residing in the United States, who will provide financial support to an alien seeking to enter the United States or adjust his status. There are two affidavit of support forms, I-864 and I-134. The regulations must be consulted with respect to the appropriate use and requirements of these forms. Form I-864 is most often used. It is required to be given by petitioners for immediate family and, in the employment-based categories if the employer/petitioner is related to the beneficiary. There are extensive obligations on the affiant, including enforceability of the affidavit as a contract until the beneficiary becomes an American citizen or has forty calendar quarters of qualifying employment in the United States. The I-134, Affidavit of Support, is often used in connection with nonimmigrant visa applications as a form of evidence to demonstrate that the alien seeking classification as a visitor, student or similar non-employment-based nonimmigrant classification will have adequate financial resources while in the United States in order to overcome concerns of his becoming a public charge.

II. Immigration through Employment & PERM

U.S. immigration law is consciously designed to serve the interests of both employers and workers. There are many avenues through which employers can petition for foreign-born employees. Nevertheless, our immigration laws protect U.S. workers by restricting employment-based immigration to persons whose skills and expertise are otherwise unavailable in the domestic workforce.

A person seeking to permanently enter the U.S. workforce through employer sponsorship is not admissible unless the Department of Labor certifies that he or she will not displace nor adversely affect the wages and working conditions of U.S. workers who are similarly employed. The employer must file an application with DOL establishing that both of these criteria have been met.

Companies that need qualified workers, but are unable to find enough U.S. workers to fill those positions, can use the labor certification process to sponsor workers from other countries. In most cases, these workers have specific medical skills, technical ability and bilingual experience to work in occupations like engineering, medicine, teaching, computer science or research.

It is critical that each application is meticulously prepared, all deadlines are met, all references are verified, data is exact and everything documented is in accordance with all current immigration and labor laws. Workers can enter the United States with the following types of visa or immigration statuses:

• PERM Application
• E-1/E-2 – Treaty Country Investor Visa
• EB1 – Green Card based on the National Interest Waiver, Alien Of Extraordinary Ability, Outstanding Professor Or Researcher, Multinational Executive
• EB2 – Green Card based on being a Member Of Profession Holding An Advanced Degree Or Alien Of Exceptional Ability
• EB3 – Green Card for a Skilled Worker Or Professional
• EB4 – Green Card for Any Other Worker in shortage industries
• EB5 - Immigrant Investor willing to invest at least $500,000 into United States’ economy

III. Immigration through Political Asylum

Certain aliens can immigrate to the United States and receive permanent resident status through petition for asylum. Political Asylum may be granted to people who are already in the United States and are unwilling or unable to return to their home country because of persecution or a well-founded fear or persecution on account of race, religion, nationality, membership in a particular social group or political opinion. As of 1996, persons in the United States have one calendar year to apply for political asylum, unless the conditions of the country of persecution change or there are exceptional circumstances.

NONIMMIGRANT VISAS

I. Nonimmigrant Employment Visas

These visas are issued to aliens eligible for admission to the United States. The period of validity of a particular visa establishes the period during which the alien may present himself at an American port of entry. Visas may be valid for as few as thirty days or up to ten years, and may be limited to a single entry or be valid for multiple entries. The period of validity of the visa is not the same as the authorized period of temporary stay, which is indicated on Form I-94, Arrival Departure Record, stapled to the passport and may be less than the period of validity of the visa or much longer (typically when single entry visas are valid only for a limited period of time).& It is important to understand that it is always the I-94, and not the visa in the passport, that determines a nonimmigrant alien’s status and the authorized purpose as well as the period of stay.  An alien is not out of status if he was properly admitted pursuant to a valid visa, and the visa has expired, provided that the person is still within the authorized period of stay indicated on Form I-94. An alien authorized to work only for a temporary period of time. Some aliens are authorized to work in the United States temporary pursuant to the Immigration Reform and Control Act of 1986, the Immigration Act of 1990 as well as other legislation. Nonimmigrant, temporary worker classes of admission are as follows:

• H-1B – Visa for Professionals in Specialty Occupations with Master’s and Bachelor’s Degrees
• H-2A – Seasonal Worker Visa
• H-2B - Other Seasonal Work Visas
• L-1 - Inter-Company Transferees Visa for International Manager
• TN- Visa for Mexican and Canadian Professionals
• O – Visa for Aliens with extraordinary ability in sciences, arts, education, business or athletics
• P – Visa for Athletes and Entertainers for a Specific Competition or Performance
• R – Visa for Religious Workers

All non-immigrant work visas (H, L, O, P, Q, R) require a CIS-approved petition from a U.S. sponsor. Treaty-trader or treaty-investor visas (E1/E2) can be applied for directly by the individual as long as he or she is from a country with which the United States has a treaty.

The most common work-related visas are H-1B Visas and L1 Visas. The H-1B is a way to bring foreign-born professionals to the United States for a period of up to six years. A sponsor is required and the employment may only start up when the new employee is in the United States. The L1- Visa is for people working for an employer abroad for one year in a related business entity in a manager, executive or specialized knowledge staff capacity, and who will come to the United States to continue providing services for his or her employer.

TN Visas
The North American Free Trade Agreement (NAFTA) was implemented on January 1, 1994. It created a category for Mexican and Canadian professionals allowing for temporary entry into the United States with Trade NAFTA (TN) status. Under TN status, Mexican and Canadian citizens in certain professions may work in the United States on a temporary basis. Eligible professionals may also work for Mexican and Canadian companies in the United States.

In order to qualify for TN status, the applicant must be intending to be involved in a profession listed in Appendix 1603.D.1 of NAFTA and the applicant must possess the required credentials to be considered a "professional”. In most, but not all of the listed professions, a bachelor's degree or better is usually required. However, the list of eligible professions also includes occupations which do not necessarily require a bachelor's degree as a minimum requirement. Examples of these occupations are management consultants, hotel managers, librarians and graphic designers. The requirements for each of these categories appear in Appendix 1603.D.l of NAFTA.

Employment Authorization
U.S. employers must check to make sure all employees, regardless of citizenship or national origin, are allowed to work in the United States. If you are not a citizen or a lawful permanent resident, you may need to apply for an Employment Authorization Document (EAD) to prove you may work in the United States.

USCIS issues Employment Authorization Documents (EAD) in the following categories:

• EAD: This document proves you are allowed to work in the United States.
• Renewal EAD: You should apply for a renewal EAD six months before your original EAD expires.
• Replacement EAD:  This document replaces a lost, stolen or mutilated EAD. A replacement EAD also replaces an EAD that was issued with incorrect information, such as a misspelled name.
• Interim EAD:   If USCIS does not approve or deny your EAD application within 90 days (within 30 days for an asylum applicant; note: asylum applicants are eligible to file for EADs only after waiting 150 days from the date they filed their properly completed original asylum applications), you may request an interim EAD document.
• The specific categories that require an Employment Authorization Document include (but are not limited to) asylees and asylum seekers; refugees; students seeking particular types of employment; applicants to adjust to permanent residence status; people in or applying for temporary protected status; fiancés of American citizens; and dependents of foreign government officials. Please see Form I-765 (Application for Employment Authorization) for a complete list of the categories of people who must apply for an Employment Authorization Document to be able to work in the United States.
• If you are a U.S. citizen, you do not need an Employment Authorization Document.
• If you are a lawful permanent resident or a conditional permanent resident, you do not need an Employment Authorization Document. Your Alien Registration Card proves that you may work in the United States.
• If you are authorized to work for a specific employer, such as a foreign government, you do not need an Employment Authorization Document. Your passport and your Form I-94 (Arrival-Departure Record) prove that you may work in the United States. Please see 8 CFR 274a.12(b), which provides a full list of the categories of people who do not need to apply for an EAD.

II. Visitor & Student Visas

Visitors can come to the United States for pleasure or a short business visit to attend a conference or trade show. These visitors may obtain visa B1/B2 and must demonstrate to the United States immigration authorities that they have no intent to remain in the United States permanently upon completion of their visit. Likewise, students who desire to pursue educational opportunities in the United States may petition for a student visa F. To obtain a student visa, the applicant must demonstrate that he/she has no intent to immigrate to the United States upon completion of the academic studies.

• B1 – Visa for Temporary Visitor for Business
• B2 – Visa for Temporary Visitor for Pleasure
• F1 – Visa for Students to Pursue Educational Endeavors in the United States

DEPORTATION & REMOVAL DEFENSE, IMMIGRATION LITIGATION

Deportable Aliens
One admitted into the United States subject to any grounds of removal specified in the INA. This includes any alien illegally in the United States, regardless of whether he entered the country by fraud or misrepresentation, or entered legally but subsequently violated the terms of his nonimmigrant status.

If you are a foreign national who is being charged or convicted of a crime, you need to contact an experienced immigration lawyer immediately to obtain defense during deportation or removal proceedings. On September 30, 1996, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, (Pub. L. No. 104-208, 110 Stat. 3009 "IIRAIRA") was passed into law. Since that time the rights of aliens in the United States have been severely curtailed when past criminal conduct is a factor. Crimes that previously did not cause immigration consequences now trigger deportation proceedings against an alien. Crimes as serious as murder, and as minor as shoplifting, can result in deportation.

There are three agencies, which may have jurisdiction or input into a deportation or removal proceeding:

• USCIS – U.S. Citizenship and Immigration Services (for green cards and citizenship)
• ICE – U.S. Immigration and Customs Enforcement(for deportations and investigations)
• CBP – U.S. Customs and Border Protection (for airport and border crossing issues)

Deportation & Removal Defenses
Deportation (or removal) occurs when an alien is found to have violated certain immigration or criminal laws, consequences being that the alien forfeits his or her right to remain in the U.S., and is usually barred from returning.

If the DHS believes that you should be removed or deported from the United States, or an individual is found "inadmissible" to the United States, the DHS will issue a piece of paper called a "Notice to Appear" or "NTA" which initiates court proceedings to determine if an individual is removable, deportable or inadmissible from the United States. An Immigration Judge presides over these court proceedings which are held at US Immigration Courts across the country. These are formal court hearings and should be taken very seriously as your immigration record may be permanently affected and you can be physically deported from the United States. Only an Immigration Judge can determine if you are removable, deportable or inadmissible and whether you have relief from removal. If the Immigration Judge denies relief, you may appeal to the Board of Immigration Appeals (BIA). BIA has jurisdiction over decisions made by Immigration Judges. We represent foreign nationals before Immigration Courts in deportation and removal proceedings. We will defend you vigorously utilizing all available deportation and removal defenses. These defense include:

Voluntary Departure
Certain aliens are allowed to exit the United States without an order of removal. An immigration judge might have a hearing prior to the departure to remove the alien. If the judge grants voluntary departure, the alien will concede the issue of removal but the alien will not be barred from seeking readmission at any time. Failure to depart within the time granted results in a fine and a ten-year bar to several forms of relief from deportation.

Suspension of Deportation
Remedy initiated before removal proceedings began under the IIRAIRA for certain persons who have been in the United States for either seven or ten years and have met other criteria set forth in INA 244(a), now superseded by a procedure called Cancellation of Removal.

Cancellation of Removal
Relief from removal is a discretionary benefit allowing an alien to adjust his/her status from that of deportable alien to one of being lawfully admitted for permanent residence. An application for cancellation of removal is made during the course of a hearing before an immigration judge.

Board of Immigration Appeals/Federal Court Litigation
The Board of Immigration Appeals (BIA or Board) is the highest administrative body for interpreting and applying immigration laws. The Board 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 either an alien, a citizen or a business. In addition, the Board is responsible for the recognition of organizations and accreditation of representatives requesting permission to practice before DHS, the Immigration Courts and the Board.

Decisions of the Board are binding on all DHS officers and Immigration Judges unless modified or overruled by the Attorney General or a Federal court. All Board decisions are subject to judicial review in the Federal courts. The majority of appeals reaching the Board involve orders of removal and applications for relief from removal. Other cases before the Board 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.

While most immigration matters involve administrative court proceedings at the US Immigration Courts and the Board of Immigration Appeals, federal courts such as the Court of Appeals and the U.S. District Courts have jurisdiction over very significant immigration matters.

ADMISSION TO THE UNITED STATES

Consular Processing
If an individual is in another country, he or she may apply for a visa or green card in the U.S. embassy of his or her home country. Attorney Evita Tolu is able to facilitate all of the paperwork and applications and contact the consular officers to facilitate approval of the application.

Waivers of Inadmissibility
An Application for a Waiver of Inadmissibility is an application for legal entry to the United States made by an individual who is otherwise inadmissible on one or more grounds. The application is submitted to U.S. Citizenship and Immigration Services (USCIS), a Bureau of the U.S. Department of Homeland Security (DHS).

Adjustment of Status
Certain qualified aliens may obtain lawful permanent residency by adjusting/changing their status while in the United States. Aliens admitted to the United States in a nonimmigrant, refugee or parolee category may have their status changed to that of lawful permanent residents if they are eligible to receive immigrant visas and immediately available. In such cases, the alien is counted as an immigrant as of the date of adjustment, even though he may have been in the United States for an extended period of time. Beginning in October 1994, Section 245(i) of the INA allowed illegal residents who were eligible for immigrant status to remain in the United States and adjust to permanent resident status by applying at a USCIS office and paying an additional penalty fee.  Section 245(i) is no longer available unless the alien is the beneficiary of a petition under Section 204 of the Act or of an application for a labor certification under Section 212(a)(5)(A), filed on or before April 30, 2001. Moreover, if the application is filed after January 1, 1998, the alien must have been present in the United States on December 21, 2000. Prior to October 1994, most illegal residents were required to leave the United States and acquire a visa abroad from the Department of State as they are now.

NATURALIZATION

Naturalization is the process by which a foreign person becomes a U.S. citizen. Almost everyone who goes through naturalization must first have held a green card for several years. A naturalized U.S. citizen has virtually the same rights as a native-born American citizen.

Naturalization is the process by which U.S. citizenship is conferred upon a foreign citizen or national after he or she fulfills the requirements established by Congress in the Immigration and Nationality Act (INA). The general requirements for administrative naturalization include:

• a period of continuous residence and physical presence in the United States;
• residence in a particular USCIS District prior to filing;
• an ability to read, write and speak English;
• a knowledge and understanding of U.S. history and government;
• good moral character;
• attachment to the principles of the U.S. Constitution; and,
• favorable disposition toward the United States.

All naturalization applicants must demonstrate good moral character, attachment and favorable disposition. The other naturalization requirements may be modified or waived for certain applicants, such as spouses of U.S. citizens.

Temporary Protected Status
Temporary Protected Status (TPS) is a temporary immigration status granted to eligible nationals of designated countries (or parts thereof). In 1990, as part of the Immigration Act of 1990 (“IMMACT”), P.L. 101-649, Congress established a procedure by which the Attorney General may provide TPS to aliens in the United States who are temporarily unable to safely return to their home country because of ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions. On March 1, 2003, pursuant to the Homeland Security Act of 2002, Public Law 107-296, the authority to designate a country (or part thereof) for TPS, and to extend and terminate TPS designations, was transferred from the Attorney General to the Secretary of Homeland Security.  At the same time, responsibility for administering the TPS program was transferred from the former Immigration and Naturalization Service (Service) to U.S. Citizenship and Immigration Services (USCIS), a component of the Department of Homeland Security (DHS).

During the period for which a country has been designated for TPS, TPS beneficiaries may remain in the United States and may obtain work authorization. However, TPS does not lead to permanent resident status.  When the Secretary terminates a TPS designation, beneficiaries revert to the same immigration status they maintained before TPS (unless that status had since expired or been terminated) or to any other status they may have acquired while registered for TPS.  Accordingly, if an alien had unlawful status prior to receiving TPS and did not obtain any status during the TPS designation, the alien reverts to unlawful status upon the termination of that TPS designation.

If you or someone you know needs the assistance of an experienced St. Louis Immigration Attorney, call Evita Tolu of Stientjes & Tolu LLC today at 866-781-6112, or complete the contact form provided on this site to schedule a free consultation.

If you or someone you know needs the assistance of an experienced St. Louis Immigration Attorney, call Evita Tolu of Stientjes & Tolu LLC today at 866-781-6112, or complete the contact form provided on this site to schedule a free consultation.

ADDRESS OF THE FIRM:
Stientjes & Tolu LLC
9378 Olive Blvd Suite. 325
Saint Louis, MO 63132
Phone: 866-781-6112
Hours: M-F, 8:00AM-5:00PM

MEMBERS OF THE FIRM:

• Attorney Evita Tolu

Evita has been practicing immigration law since 2000. She assists her clients in obtaining permanent and temporary employment visas, setting up businesses while maintaining compliance with all U.S. immigration laws. Evita’s clients include students, exchange visitors, business personnel, nurses, doctors, athletes and entertainers, religious workers, investors, persons with extraordinary ability, outstanding researchers, professors, and multinational managers.

She is familiar with DHS and USCIS’ administrative procedures and provides client representation at all levels of the immigration review. She also litigates immigration cases in federal and immigration courts. Evita immigrated to the United States in 1993 and experienced the application of the United States immigration process first hand. Evita’s cross-cultural background allows her to provide legal and business advice that fits the cultural context of her clients.

In 2005, Evita was named as one of the “40 Most Influential Business People Under 40” in the St. Louis Metropolitan area by the St. Louis Business Journal for her dedicated assistance to immigrants. Evita is a member of the American Immigration Lawyer Association.

Education:

• St. Louis University School of Law, J.D., magna cum laude, 2000, top 2%, Order of the Coif
• University of Tula, Russia, B.A./M.A., summa cum laude, 1990, top 1% with High Honors

Bar Admissions:

• California
• Missouri
• Illinois
• United States District Court for the Eastern District of Missouri
• United States District Court for the Central, Southern, and Northern Districts of Illinois

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