Alien Relative Petition

If you are a citizen or lawful permanent resident and are hoping to bring family members to this country, you will first have to file a sponsorship petition on their behalf with USCIS. Once this has been approved, your loved ones can complete the process of obtaining an immigrant visa either through adjustment of status or consular processing. Adjustment of status is used in cases where the intending immigrant is already living in the US, and can avoid the requirement of returning to the country of origin. Consular processing, on the other hand, is used in cases where the intending immigrant is either not eligible for adjustment of status or is still living abroad.

 

Immediate Relative Categories

The US government supplies an unlimited number of immigrant visas for this category. A visa 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 to the latter group, and there may be a wait of up to five years or even more for a visa 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

 

Adjustment of Status

With adjustment of status, it is not necessary for the intending immigrant to return to his or her country of origin in order to obtain a green card. Instead, he or she is permitted to remain in this country, even if the term of the original visa is set to expire or has expired in some cases. It is even possible in certain situations for the intending immigrant to obtain permission to work while awaiting the approval of the petition by applying for employment authorization. Similarly, there are travel documents available which make it possible to leave the country and obtain reentry before the petition has been approved.

 

Consular Processing

Consular processing allows the intending immigrant to submit the necessary paperwork, and attend any required interviews, at the US Consulate in their country of origin. The result of a successful case of consular processing is that the intending immigrant is granted an immigrant visa, which enables him or her to lawfully enter and remain in the US. The person's green card will then be mailed to his or her new home address in the US within a few weeks. 

 

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 becoming deportable.  

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. 

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

In November of 2014, President Obama announced a new immigration enforcement policy that prioritizes the deportation of criminals and new arrivals. These are the categories of people who are now considered a deportation priority, and are, therefore, at greatest risk of being apprehended and placed in deportation proceedings:

  • Priority 1:  Focuses on people who are “threats to national security, border security, and public safety.” This includes: persons suspected of having involvement with gangs, spies, or terrorists; persons convicted of a felony (defined under state law), or an “aggravated felony” (defined by federal law); and persons apprehended at the borders while attempting to enter unlawfully.
  • Priority 2: Focuses on people who are “misdemeanants and new immigration violators.” This includes: persons convicted over three or more misdemeanors, not including minor traffic offenses and state convictions where immigration status is an element; visa “abusers"; persons without status who have not been continuously present in the U.S. since January 1, 2014; and persons with convictions for a significant misdemeanor. A “significant misdemeanor” is defined as an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, driving under the influence, or any misdemeanor for which the person was sentenced to serve 90 days or more in jail.
  • Priority 3: Focuses on people who have “other immigration violations.” This priority only names “those who have been issued a final order of removal on or after January 1, 2014." 

 

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.

Prosecutorial Discretion 

Prosecutorial discretion refers to the power that ICE has to influence a deportation case. ICE can exercise its prosecutorial discretion in many different ways, including agreeing to terminate deportation proceedings in cases where it is determined that the immigrant is not a deportation priority. 

 

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). 

Asylum

There are two different types of asylum: affirmative asylum and defensive asylum. The former refers to cases in which a foreign national applies for asylum prior to the commencement of deportation proceedings, whereas the latter is used in cases in which an individual is already in deportation proceedings and is applying as a defense to deportation. In order to qualify for asylum, 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. 

With affirmative asylum, the case is adjudicated by the local USCIS asylum office. With defensive asylum, the case is adjudicated by the local Immigration Court having jurisdiction over the deportation proceedings. Regardless of where the case is heard, the requirements are the same.

 

Refugee Status

Although generally the same in terms of requirements and status, the major difference between the refugee and asylum processes is that an individual seeking to immigrate as a refugee begins the process while still abroad. A person seeking asylum must first be physically present in the US to file an asylum application.  

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.

DACA

On June 15, 2012, President Obama created a new policy calling for deferred action for certain undocumented immigrants who came to the US as children. Deferred action is a discretionary determination to defer deportation of an individual as an act of prosecutorial discretion. A deferred action grant does not in and of itself make an individual eligible for a green card or citizenship. However, it prevents the individual from being deported, and it makes it possible to work legally in the US, and to apply for a driver’s license. DACA is granted for a period of two years, at the conclusion of which the individual may apply to renew for another two years. Because DACA is a purely discretionary determination, it can be revoked at any time if the individual no longer qualifies, or if USCIS determines the individual no longer warrants discretion. 

To be eligible for deferred action for childhood arrivals, the foreign national must:

  • Have been younger than 31 years of age on June 15, 2012
  • Have come to this country before they reached the age of 16 years old
  • Have continuously resided in this country since June 15, 2007
  • Have been physically present in this country on June 15, 2012 and be present at the time of the request for deferred action
  • Have either entered this country without inspection before June 15, 2012 or with a non-immigrant visa that expired as of that date
  • Be currently enrolled in school or have either graduated high school or received a GED, or have been honorably discharged from the Armed Forces or Coast Guard
  • Have never been convicted of a significant misdemeanor crime, a felony or three or more misdemeanors, and not be perceived as posing a threat to public safety or national security

 

EXPANDED DACA and DAPA

On November 20, 2014, President Obama announced an expansion of DACA to include individuals who entered the country before 2010, eliminate the requirement that applicants be younger than 31 years old, and lengthen the renewable deferral period to three years. At the same time, President Obama announced DAPA, a program similar to DACA for certain undocumented parents who have US citizen or lawful permanent resident (green card holder) children. The state of Texas, along with 25 other states, sued the US government and President Obama arguing that the expanded DACA and DAPA programs are unconstitutional. A federal district court in Texas issued an order blocking the implementation of Obama's executive actions, and the issue was appealed all the way to the US Supreme Court. On June 23, 2016, in a disappointing ruling, the Supreme Court deadlocked on the issue, which means expanded DACA and DAPA remain blocked. The litigation on the president’s executive actions will continue, but ultimately, the future of the immigration policy will be decided by the next president, who will choose whether to continue fighting for expanded DACA and DAPA. In the meantime, USCIS continues to accept initial and renewal applications from people who qualify under the DACA criteria announced in June 2012.

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. 

"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.