Alien Relative Petition

If you are a citizen or lawful permanent resident and are hoping to bring family members to this country to live, you will first have to file an alien relative petition on their behalf with USCIS. Once this has been approved, and your loved one has a visa number available, he or she can complete the process of obtaining a green card either through consular processing or adjustment of status.

 

Immediate Relative Categories

The US government supplies an unlimited number of immigrant visas for this category. A visa number would always be available for any member of this group once the petition is approved. This category includes: 

  • Spouses of US citizens
  • Unmarried children under the age of 21 of US citizens
  • Parents of US citizens (provided that the citizen is at least 21 years old)

 

Family Preference Categories

This type of visa is limited, with a specific quota set for each of the four categories. The key difference between immediate relative visas and family preference visas is that there is a limit to the visas available in the latter group, and there may be a wait of several years for a visa number to become available. The qualifying relationships in this category include:

  • Unmarried children of US citizens and their own children
  • Spouses, minor children and unmarried adult children of permanent residents
  • Married children of US citizens and their own spouses and children
  • Siblings of US citizens over the age of 21, as well as the sibling's spouse and children

 

Same-Sex Marriages

The Supreme Court of the United States in U.S. v. Windsor struck down Section 3 of the Defense of Marriage Act (DOMA), which now means that same-sex marriages and spouses are recognized as lawful under the Immigration and Nationality Act if the marriage is valid under the laws of the state where it was celebrated. Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013). Spouses of same-sex marriages that are valid in states where the marriage was celebrated are now eligible for family-based green cards.

 

Consular Processing

Once the foreign national seeking to obtain a green is the beneficiary of an approved petition, and a visa number is immediately available to him or her, there are two ways to apply for a green card: consular processing and adjustment of status. If the applicant resides outside of the US, or if the applicant resides in the US but is ineligible for adjustment of status, he or she must apply at a US consulate abroad. The foreign national submits the necessary paperwork, and attends any required interviews, at the US consulate in their country of origin. The result of a successful case of consular processing is that the foreign national is granted an immigrant visa, which enables him or her to lawfully enter and remain in the US as a permanent resident. The person's green card will then be mailed to his or her new home address in the US within a few weeks of his entry. 

 

Adjustment of Status

Adjustment of status is a procedure that allows an eligible foreign national to obtain a green card in the US without having to return to his or her home country to apply for an immigrant visa at the US consulate. Instead, he or she is permitted to remain in the US, and apply for work authorization while the green card application is pending. He or she may even be able to obtain a travel document to travel abroad while awaiting a decision on his or her green card application. One cannot just choose to adjust status in the US. The foreign national must be eligible under Section 245 of the Immigration and Nationality Act. Generally, the applicant must have entered the US lawfully, after inspection by immigration agents, and be in valid visa status at the time he or she applies for adjustment. One major exception regarding overstays applies to the immediate relatives (spouse, minor children, parents) of US citizens. As long as they were admitted to the US, whether with a visa or an advance parole travel document, they may apply for a green card through adjustment of status, even if their lawful status expired. 

 

Conditional Resident Status

Immigrants who obtain a green card based on a marriage that was less than two years old at the time of the petition, are granted conditional resident status, and receive a green card that is valid for only two years. In order to remain a lawful permanent resident beyond this two-year window, the immigrant must file a petition to remove the conditions on during the 90-day period before the conditional permanent resident status expires. Failure to properly and timely file a petition to remove conditions can result in the immigrant being placed in deportation proceedings.  

business petition categories

There are roughly 140,000 immigrant visas available each fiscal year for foreign workers and their spouses and children. These visas will allow foreign workers to live and work in the country on a permanent basis. There are five categories under which foreign workers or their employers can file petitions to immigrate. These categories are organized by the type of skills, education, and work experience. Some categories require the employer to obtain an approved labor certification from the United States Department of Labor ("DOL") before submitting an immigration petition. The DOL labor certification verifies that: 1) there are insufficient available, qualified, and willing US  workers to fill the position being offered, and 2) hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed US workers. The five worker visa categories are: 

  • EB-1 Priority Workers: 

Available for priority workers with extraordinary ability in the area of science, art, education, business, or athletics. This includes outstanding professors and researchers, as well as multinational executives and managers. No labor certification is required.

  • EB-2 Professionals Holding Advanced Degrees and Persons of Exceptional Ability: 

Available for individuals who are professionals with advanced degrees, meaning beyond a baccalaureate degree, or for persons with exceptional ability, meaning they have a degree of expertise significantly above that ordinarily encountered, in the areas of art, science, or business. Labor certification is required unless a national interest waiver is obtained.

  • EB-3 Skilled Workers, Professionals, and Unskilled Workers (Other Workers): 

Skilled workers are persons whose jobs require a minimum of two years training or work experience that are not temporary or seasonal. Professionals are members of the professions whose jobs require at least a baccalaureate degree from a US university or college or its foreign equivalent degree. Unskilled workers (other workers) are persons capable of filling positions that require less than two years training or experience that are not temporary or seasonal. Labor certification is required.

  • EB-4 Certain Special Immigrants: 

A "special immigrant" includes certain religious workers, employees of US Foreign Service posts, retired employees of international organizations, alien minors who are wards of US courts, and more. No labor certification is required.

  • EB-5 Immigrant Investors: 

Available to business investors who invest a minimum of $1 million in a new commercial enterprise that employs at least 10 full-time US workers, or $500,000 if made in a targeted employment area. No labor certification is required.

 

Consular Processing

Once the foreign national seeking to obtain a green is the beneficiary of an approved petition, and a visa number is immediately available to him or her, there are two ways to apply for a green card: consular processing and adjustment of status. If the applicant resides outside of the US, or if the applicant resides in the US but is ineligible for adjustment of status, he or she must apply at a US consulate abroad. The foreign national submits the necessary paperwork, and attends any required interviews, at the US consulate in their country of origin. The result of a successful case of consular processing is that the foreign national is granted an immigrant visa, which enables him or her to lawfully enter and remain in the US as a permanent resident. The person's green card will then be mailed to his or her new home address in the US within a few weeks of his entry. 

 

Adjustment of Status

Adjustment of status is a procedure that allows an eligible foreign national to obtain a green card in the US without having to return to his or her home country to apply for an immigrant visa at the US consulate. Instead, he or she is permitted to remain in the US, and apply for work authorization while the green card application is pending. He or she may even be able to obtain a travel document to travel abroad while awaiting a decision on his or her green card application. One cannot just choose to adjust status in the US. The foreign national must be eligible under Section 245 of the Immigration and Nationality Act. Generally, the applicant must have entered the US lawfully, after inspection by immigration agents, and be in valid visa status at the time he or she applies for adjustment. 

 

what is a Waiver and when is it necessary?

The US government maintains a long list of reasons why a person may be denied entry to the US, or may be denied a green card. These include, but are not limited to, grounds related to communicable diseases or refusal of vaccinations, certain criminal convictions, potential threats to US national security, illegal entry or presence in the US, and committing fraud on an immigration application. In many cases it is possible to overcome such grounds of inadmissibility by filing an application for a waiver of inadmissibility. Some of the more common grounds of inadmissibility allowing for a waiver application are discussed below. Note that many of them contain very specific requirements as to who can apply and on what grounds, and the applicant is required to submit extensive evidence demonstrating that they meet the various requirements and deserve the waiver.

 

Waiver of Unlawful Presence in the United states

Any foreign national who is present in the US without a valid visa or other travel document is considered to be unlawfully present in the country. Any foreign national who is unlawfully present in the country for more than 180 days, but less than one year, and departs the US, is barred from returning for a period of three years from the date of departure. Additionally, any foreign national who is unlawfully present in the US for more than one year, and departs the US, is barred from returning for a period of ten years from the date of departure. These are known as the three- and ten-year bars. A select few individuals are excluded from the three- and ten-year bars, such as minors and asylees. 

Unlawful presence may be the most common ground of inadmissibility for which inadmissibility waiver applications are filed. Under current law, beneficiaries of alien relative petitions who are not eligible to adjust status in the US must travel abroad and obtain an immigrant visa via the US consulate in their native country. If the beneficiary's departure triggers the three- or ten-year bar, the beneficiary must obtain a waiver of inadmissibility before they can return to the US.

Under the traditional waiver process, the beneficiary cannot apply for the waiver until after they appear for their immigrant visa interview abroad, and a consular officer determines that a waiver is required. To qualify for a waiver, the beneficiary must have a US citizen or lawful permanent resident spouse or parent, and must show that their qualifying relative would suffer "extreme" hardship if they are not allowed to return to the US (please note that US citizen and lawful permanent resident children are not qualifying relatives for this waiver). Because waivers are discretionary, there is an inherent risk with the traditional waiver process that the waiver will be denied, and the applicant will be unable to return to the US. 

As of March 4, 2013, certain beneficiaries of alien relative petitions can apply for an unlawful presence waiver in the US, before they depart for their immigrant visa interview abroad. To qualify for this provisional unlawful presence waiver, the beneficiary must be the immediate relative of a US citizen (spouse, child under 21, or parent), and must demonstrate that denial of the waiver will result in “extreme” hardship to their US citizen spouse or parent (again, he or she cannot qualify for this waiver based on hardship to a US citizen or lawful permanent resident child).

The most difficult part of these waiver applications is demonstrating extreme hardship to the qualifying relative. Extreme hardship is generally understood to mean a greater hardship than the normal hardship an individual in the same situation can be expected to experience. This vague definition means that there is no right or wrong answer. However, it also means that the officer reviewing the case has broad discretion in deciding whether or not the foreign national’s circumstances constitute extreme hardship. 

 

Waiver of Immigration Misrepresentation 

Another common ground of inadmissibility that allows for a waiver application is having secured an immigration benefit through fraud or misrepresentation. The foreign national will not, however, be eligible for a waiver under any circumstances if they falsely claimed to be a US citizen. To qualify for this waiver, the foreign national must have a US citizen or lawful permanent resident spouse or parent, and must show that this qualifying relative will suffer extreme hardship if they are denied a waiver. The applicant cannot qualify for this waiver based on hardship to a US citizen or lawful permanent resident child.

 

Waivers of Certain Criminal Grounds of Inadmissibility

If a foreign national is denied admission to the US, or a green card, because of their criminal history, they may be eligible to file a waiver application. Criminal grounds that allow for a waiver application include crimes of moral turpitude, prostitution, and a single offense of possession of 30 grams or less of marijuana. Waivers are not allowed for murder, torture, aggravated felonies, or for violations of any other law regarding controlled substances. If the foreign national’s criminal ground of inadmissibility allows for a waiver application, they are eligible if one of the following applies:

  • More than 15 years has passed since they committed the crime; or
  • They have a US citizen or lawful permanent resident spouse, child, or parent who will experience extreme hardship if they are not granted a waiver.

If applying for a waiver based on the passage of 15 years, the foreign national will have to demonstrate that they are not a threat to US safety, security, or welfare, and that they have rehabilitated. The officer will have discretion in deciding upon these factors. The chances of success will be greater if the foreign national has not committed any other crimes during the 15-year period, and they actively participated in and completed programs specific to rehabilitation. If applying based on the hardship to a qualifying relative, the factors will be the same as those for waivers of unlawful presence and misrepresentation. The biggest difference is that US citizen and lawful permanent resident children are qualifying relatives for this waiver. 

Green Card Holders

Lawful permanent residents (green card holders) must meet a number of requirements  in order to obtain US citizenship. The requirements are as follows:

  • Be 18 or older
  • Be a green card holder for at least 5 years
  • Continuous residence in the US as a green card holder for at least 5 years
  • Physical presence in the US for at least 30 months out of the 5 years
  • Be able to read, write and speak English
  • Have a knowledge of US history and government
  • Be a person of good moral character (a criminal record may affect eligibility)

There are a few exemptions available for the English and civics requirements listed above. An individual can be exempt from the English language requirements (but still required to take the civics test) if they are age 50 or older at the time of application and have lived as a green card holder for 20 years, or if they are age 55 or older at the time of application and have lived as a green card holder for 15 years. For the civics section of the test, an individual may be exempt if they are unable to comply with the requirements due to a physical or developmental disability, or a mental impairment.

 

Green Card Holders Married to US Citizens 

Green card holders who are married to a US citizen can apply for naturalization under different eligibility requirements. These include having been a permanent resident for at least three years, married to the same US citizen spouse during that time, and other residency and physical presence requirements.

 

Green CArd Holders in the MIlitary

The US government values the selfless commitment of foreign nationals who serve our country in the armed forces. As such, members of the military, as well as their spouses and children, may be eligible for citizenship through an expedited process. This form of naturalization may also be conducted through overseas processing, if necessary.

 

Citizenship Through Parents 

Foreign citizens may also obtain citizenship through their parents through two distinct pathways, one at birth and one after birth but before the age of 18. The requirements for a child to derive citizenship from a parent have changed several times since the law was enacted so eligibility is dependent on the applicable law at the time of the child’s date of birth. 

U Visa

The U visa is set aside for victims of certain criminal activity who suffered substantial mental or physical harm as a result of the criminal activity, and who cooperate in the investigation and/or prosecution of the criminal activity. Among other evidence, the applicant is required to submit a written certification by a government official involved in the criminal case that the applicant was helpful, is being helpful, or is likely to be helpful in the investigation and/or prosecution of the criminal activity. Certain family members of principal U Visa holders can obtain derivative status. An individual who is granted a U Visa, and qualifying family members, may eventually apply for a green card.

 

T Visa

These special visas are specifically made available for victims of human trafficking, such as immigrants brought to the US and forced to work hard labor or forced into prostitution to pay for their passage. As with the U Visa, the immigrant must comply with any reasonable request from a law enforcement agency for assistance in the investigation and/or prosecution of the human trafficking. Certain qualifying family members of principal T Visa holders can obtain derivative status. An individual who is granted a T Visa, and qualifying family members, may eventually apply for a green card.

 

Violence Against Women Act (VAWA)

For victims of domestic violence, as an alternative to the U visa, VAWA allows an immigrant who is the spouse, parent, or child of a US citizen or lawful permanent resident (green card holder), and who has suffered extreme cruelty at the hands of the US citizen or lawful permanent resident, to obtain lawful status without needing to ask for sponsorship from the abusive US citizen or lawful permanent resident. Immigrants granted VAWA status will be permitted to remain in the US with valid employment authorization, and may be eligible for a green card.

Who Can be DeporteD?

Until an immigrant becomes a US citizen, they are at risk of being deported, whether on the basis of being declared inadmissible or by meeting one of the grounds for deportation. Several different factors may trigger deportation proceedings, including a conviction for:

  • Domestic violence
  • Drug crimes
  • Gun crimes
  • Crimes of moral turpitude
  • Aggravated felonies

In addition, there are several grounds of deportation that do not involve any type of criminal conviction, such as:

  • Remaining in the US on an expired visa
  • Fraud in an immigration application or other paperwork
  • Illegal border crossing
  • High-speed flight from an immigration checkpoint
  • Smuggling

 

Deportation Defense

There are several types of defenses that can be presented to an immigration judge in deportation proceedings, including, but not limited to: 

Cancellation of Removal for Lawful Permanent Residents

Individuals who have a green card can attempt to keep their status if they have had a green card for five years, lived in the US for seven years, have not been convicted of an aggravated felony, and as a matter of discretion, deserve to win their case.

Cancellation of Removal for Non-Lawful Permanent Residents 

Individuals who have resided in the US illegally for ten years or more, are of good moral character, and have a US citizen or lawful permanent resident spouse, parent, or child who would suffer exceptional hardship if an order of deportation is issued, can fight to get a green card to stay in the US. 

Adjustment of Status 

Individuals who are eligible to get their green card through sponsorship by a family member or employer can fight to get a green card to stay in the US. 

Asylum/Withholding of Removal

For individuals who fear persecution in their home country, asylum and withholding of removal are options. In order to qualify for asylum or withholding of removal, a foreign national must be able to prove past persecution, or well-founded fear of future persecution based on race, nationality, religious beliefs, political opinion, or membership in a particular social group. The main difference between asylum and withholding of removal is that an individual granted asylum can apply for a green card after one year, but those granted withholding of removal only get a work permit, and cannot apply for a green card regardless of how long they have had the withholding of removal status.   

Voluntary Departure 

An individual may request to depart the US voluntarily to avoid deportation, and pursue legal immigration options from his or her home country.

 

Detention defense

Certain classes of immigrants are statutorily ineligible for release from detention. These people subject to mandatory detention are not entitled to a bond hearing. That is, the Immigration Judge does not have jurisdiction to release them, so if ICE declines to release them, they must remain in detention while removal proceedings are pending against them.  

If the immigrant is not subject to mandatory detention,  ICE will make the initial determination as to whether the immigrant will be released, and if so, whether they will be released on bond or on their own recognizance. If ICE determines that the immigrant will not be released, or sets a very high bond for release, the immigrant can request review of ICE’s decision by an Immigration Judge.

 

Appealing or Reopening an Immigration Court Decision

If an Immigration Judge denies a request for relief from deportation, the immigrant may file a motion for the judge to reconsider the decision, or may appeal the decision to the BIA. In either case, the immigrant must show that the Judge made a material error of fact or law. Additionally, the immigrant may file a motion to reopen when new facts or evidence emerge that make the immigrant eligible for relief. A motion to reopen is most commonly necessary when the immigrant fails to appear for an Immigration Court hearing, and is ordered deported "in absentia" (while absent). 

"Crimmigration" involves the intersection of immigration and criminal law, and and it is one of our specialties here at YNGELMO LAW. A criminal conviction can destroy an immigration application at any phase – getting a green card, renewing a green card, becoming a citizen, or fighting deportation. Some convictions, known as aggravated felonies, lead to almost automatic deportation. Even smaller convictions for crimes like shoplifting and drunk driving can affect an individual's immigration status. 

Many non-citizens plead guilty to crimes to stay out of jail without realizing that their conviction can make them ineligible for immigration benefits, or can get them deported. Most criminal defense lawyers have no knowledge of how a criminal conviction can impact a non-citizen’s status in the US. If a non-citizen is facing criminal charges, they need an immigration lawyer to explain the potential immigration consequence of any possible plea agreement. In crimmigration matters, it is wise to resolve the criminal charges first, because the result of that case will determine whether you face removal or become ineligible for immigration benefits. We regularly work with criminal defense attorneys in crafting plea agreements that will not carry, or will minimize, negative immigration consequences.