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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94295
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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Hi Paul, My nephew, 27 years old, decided to live in this

Resolved Question:

Hi Paul,
My nephew, 27 years old, decided to live in this country. Growing up he came and left 5 times. He is working as a chef at a restaurant, and his boss offered to sponsor him via a labor contract (not sure if this is the right term. My question to you is how long does it take to obtain residency this way. Also, will he get a temporary residency during the process? Lastly, what is the best estate to obtain a driver license for him in the interim?
Thank you.
Cecilia
Submitted: 11 months ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 11 months ago.
Hello and thank you for using our service. My name isXXXXX and I am a licensed attorney and will try my best to help you. I just ask for two things: 1) Before you sign off, please remember to rate me positively as that is the only way that I am paid and your question does not close after you rate me so I can still answer additional questions without additional charge if you have follow-ups even weeks or months later; and, 2) IF I have bad news for you, please remember I am only the messenger. When you rate me, it is my service to you that you rate, not whether the news is good or bad. I will try my best to give you a solution, but sometimes the law does not have a good one.



I have a few questions for you:

1) What country was he born in?

2) Is he currently in the U.S.? If so, what visa did he use to enter?

3) Did he ever have any illegal time in the U.S.?

4) What level of education does he have and what level of education does the job require? The less education, the longer the wait will be to get status and Residency.
Customer: replied 11 months ago.

He was born in Argentina.


He is now in the US living with me in NY.


He has a tourist visa


Never had illegal time here.


He finished 3rd year college in International business. He has one more year to go. But wants to finish college here. He already has an interim AA degree.


Thank you


Cecilia

Expert:  Guillermo J. Senmartin, Esq. replied 11 months ago.
So he used a B-2 tourist visa to enter? How much time does he have left on his legal stay?

And what level of education does the job offered require?
Customer: replied 11 months ago.

His visa expires this September 30.


His friend, who just open a restaurant, taught him everything he knows as a chef. I don't know the level of education needed for this job. But, the restaurant has only two chefs, and they cannot live without him. He works 6 days a week.


My nephew is a gem. He also represented Argentina in the Cosmos cup this summer.


Hope this answers your question.


Thank you.


Cecilia

Expert:  Guillermo J. Senmartin, Esq. replied 11 months ago.
Well, "they cannot live without him" is not really going to work with immigration. He basically has to prove it. I can tell you that at the present moment, it is very hard to get a work visa because there are so many U.S. workers looking for jobs and few jobs available. So USCIS will not easily approve a visa that could potentially take away a job from a U.S. worker. So what does the law say?

The law says that because he does not have a bachelors degree AND the job doesn't require a bachelors degree anyway, he falls into the 3rd preference category. Take a look at this link in the 2nd chart:

http://www.travel.state.gov/visa/bulletin/bulletin_6028.html

In the 3rd category, you will see a date there of 01JAN09. This means that only I-140s filed on or before January 1, 2009 can now be used to get Residency. So if your nephew's employer files an I-140 for him now in August 2013, it will take about 4 years or so before January 2009 reaches August 2013. This is a waiting line of people that have applied before him and nothing in the law allows for anyone to jump ahead of anyone else in line, not even in an emergency.

So what can he do now since he won't be able to just wait around in the U.S. for 4 years?

Well, he would have to apply for an H-2B visa. For an H-2B worker visa, it is expensive and difficult to get because the employer would have to go through an expensive process called a Labor Certification where the position is advertised in the local media, the employer must receive all resumes and eliminate all candidates for valid reasons, not just because they have a job for him. This is to prove that he would not be taking a job away from a U.S. worker. Here is a link:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=d1d333e559274210VgnVCM100000082ca60aRCRD&vgnextchannel=d1d333e559274210VgnVCM100000082ca60aRCRD

Also, please keep in mind that if he is working at the moment, he is violating the terms of his B-2 tourist visa, so he has to be careful and not work. The idea is that he is here as a tourist and the regulations exist so that he does not take a job away from a U.S. worker.

Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just go to http://www.justanswer.com/law/expert-guillermosenmartin/. Thank you!

 

Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94295
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
Guillermo J. Senmartin, Esq. and 6 other Immigration Law Specialists are ready to help you
Expert:  Guillermo J. Senmartin, Esq. replied 11 months ago.
Hello. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!

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