Chang & Boos, Attorneys-at-Law Creating - Transparent Borders  



Immigration Law Weekly

September 16, 1996

My cousin recently won the DV lottery. Although he was single before he applied in the lottery, he has since married. His wife has a daughter from a previous marriage. In what way does this affect the issuance of a visa for him? Will his wife and her child be considered for the visa along with him?

Note 6.8 to §42.33 of the Foreign Affairs Manual states the spouse of a principal alien (if acquired prior to the principal alien's admission) or the child of a principal alien (if the child is the issue of a marriage which took place prior to the principal alien's admission to the United States), even though not named on the petition, is entitled to derivative DV-1 status. Therefore, the spouse of your cousin (the "Principal Alien") should acquire derivative DV-1 status the same time that the Principal Alien is admitted to the United States as a permanent resident.

Although the child is not the natural child of the Principal Alien, he or she is considered a stepchild if the marriage giving rise to the stepchild relationship occurred before the child reached the age of 18 years. Assuming that the child is under 18 and that the marriage giving rise to the stepchild relationship took place prior to the Principal Alien's admission, the child should also acquire derivative status.

I have recently graduated from journalism school and want to search for work in the United States. I have a previous bachelor's degree from another Canadian university. The Journalism course, while geared towards university graduates, is still considered a bachelor's on paper, so I effectively have two bachelor degrees.

  1. Is a journalist considered to be a professional, even though he or she does not require a license to practice?

  2. Due to the nature of the program, would the journalism degree for graduates be considered an advanced degree?

  3. Would one have to apply as an EB-2, an EB-3, or would one qualify under the pre-NAFTA H-1B nonimmigrant visa?

The requirement of a license is not relevant at all. The term "professional" does not have an exhaustive definition. It is defined to ''include but not be limited to architects, engineers, lawyers, physicians, surgeons, teachers in elementary or secondary schools, colleges, academies, or seminaries.'' However, if your occupation involves the application of a specialized body of knowledge and requires a bachelor degree in the field as an entry level requirement into the profession (the requirement for an H-1B), you have a reasonable chance of arguing that you are a professional. A journalists was found to be a professional in Matter of Perez 12 I. & N. Dec. 701 (BIA 1968).

Your degree in journalism would be considered a bachelors degree, not an advanced degree. The term "advanced degree" means an academic or professional degree or foreign equivalent above a Bachelors degree. This essentially means a masters degree or better. However, INS regulations state that a bachelor degree plus five years of progressive post-degree experience in the profession is the equivalent to an advanced degree. You don't qualify with an advanced degree yet, but you might once you have five years of experience

The second (EB-2) and third (EB-3) employment-based preference categories are immigrant categories and the H-1 is a nonimmigrant category. As you don't have an advanced degree, the EB-2 is out of the question. However, as journalists are professionals they also qualify under the EB-3 category. As professionals, journalists will qualify for the H-1B as well.



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