Immigration and Naturalization
Cancellation of Removal
If you are a foreign-born person who has been living in the U.S. without legal status for a long time, and you have been placed into removal (deportation) proceedings, you may be eligible for what’s called “Non-LPR Cancellation of Removal” and a green card. The conditions for this form of relief from deportation are as follows:
- You have been living (“continuously physically present”) in the U.S. for at least ten years.
- Your being removed (“deported”) from the U.S. would cause “exceptional and extremely unusual hardship” to your qualifying relative(s), who is (or are) U.S. citizens or lawful permanent residents (LPRs).
- You can show that you have “good moral character.”
- You have not been convicted of certain crimes or violated certain laws.
Meeting the Ten Years’ U.S. Residence Requirement
To qualify, you must be able to show that you have been continuously physically present for the ten years immediately before the date that you apply for cancellation. (There’s an exception if you have completed two years of active service in the U.S. armed forces, in which case those two years alone are enough to meet the time requirements for non-LPR cancellation.)
The date of your last arrival into the U.S. starts the ten-year “clock.” The clock stops when you receive a Notice to Appear in immigration court, commit certain types of crimes, or have a single absence from the U.S. of more than 90 days or multiple absences adding up to more than 180 days.
Meeting the “Qualifying Relative” Requirement
To qualify, the undocumented immigrant must have a relative who is his or her “spouse, parent, or child” and “is a citizen of the U.S. or an alien lawfully admitted for permanent residence.”
Meeting the “Exceptional and Extremely Unusual Hardship” Requirement
To qualify for non-LPR cancellation, however, the hardship to the relative must be “exceptional and extremely unusual.” The distinction between “hardship” and “exceptional and extremely unusual” is critical.
To be approved for non-LPR cancellation, it is not enough to show that a U.S. citizen or LPR relative would suffer financially, emotionally, and physically. Instead, the applicant must prove that the qualifying relative would suffer to a degree that goes above and beyond the type of suffering that would normally be expected when a close relative is deported.
Meeting the “Good Moral Character” Requirement
An immigration judge will deny an application for non-LPR cancellation if the applicant does not have “good moral character”. The judge will decide that the applicant does not have good moral character if the law specifically says that the applicant cannot have good moral character (because, for example, he or she is a “habitual drunkard”) or if the judge decides that there are other “discretionary factors” indicating that the applicant isn’t a “good person.”
The possibility of removal (deportation) from the United States can be one of the scariest experiences imaginable. The outcome can be long-term or permanent separation from your loved ones, if cases aren’t handled properly.
In immigration court, an attorney will not be provided for you, it is therefore up to you and your family to find an immigration attorney who will fight for your case.
Defending Myself in Removal Proceedings
Every case is different, which means every case offers different options when it comes to defending against removal.
-DACA (Deferred Action for Childhood Arrivals)
-Adjustment of Status
-Cancellation of Removal
-Waivers for persons with criminal convictions
-TPS (Temporary Protected Status)
If you or a family member is in removal proceedings, contact us to help develop a strategy in your defense.
Adjustment of Status
A select few people can apply for their green card without having to leave the U.S. and visit a U.S. consulate.
This U.S.-based process is known as adjustment of status. Being able to adjust status means, for some immigrants, the difference between being able to successfully apply for a green card or not.
Why Is Being Eligible to Adjust Status Important?
For some people, the question of whether they are eligible to adjust status is as important as whether they meet the underlying eligibility criteria for a green card. That’s because they have accrued 180 days or more of “unlawful presence” in the U.S. With unlawful presence on their record, leaving the U.S. for a visa interview could result in a bar upon return, for three or ten years (depending on the length of their unlawful stay). A waiver is available based on extreme hardship to qualifying family members, but not everyone will qualify for this waiver.
But if the applicant can adjust status, he or she won’t have to depart the U.S. for an interview at a U.S. consulate abroad. No departure, no potential time bar upon return. It’s as simple as that.
What Categories of Green Card Applicant Can Use the Adjustment of Status Procedure?
You can’t just choose to adjust status in the U.S.: You have to be eligible for adjustment of status (according to Section 245 of the Immigration and Nationality Act), as follows:
- You must already be eligible for lawful permanent or conditional residence, perhaps through a U.S. employer, a family member who is a U.S. citizen or permanent resident , or by having received asylum or refugee status at least one year before.
- If your eligibility is based on employment or family, you must already have an approved visa petition (Form I-130 or I-140) on file, and your priority date, if any, must be current. Priority dates apply to immigrants in “preference categories” who, because of annual limits on visas in those categories, must wait until a visa is available before proceeding with their green card application.
- If you entered the U.S. on a K-1 fiancé visa, you must have married the person who petitioned for you to receive that visa. If your eligibility is based on asylum or refugee status, you must have waited one year since either your asylum was granted or you entered the United States as a recognized refugee.
- You must be physically in the United States.
- You must NOT have entered the U.S. as a foreign national crewman, in transit without a visa (“TWOV”), or under the Visa Waiver Program (VWP).
Special Eligibility Cases: Section 245(i)
A few people who have lived in the U.S. for several years are still allowed to adjust status based on some old laws called Section 245(i) and the LIFE Act. If you fit most of the above criteria but are not eligible to adjust status due to your illegal U.S. entry or other visa or status violation, these laws let you adjust status, upon payment of a $1,000 penalty fee, if you were:
- the beneficiary of an immigrant visa petition or labor certification application (including I-140, I-130, I-360, or I-526) that was filed on or before April 30, 2001, and
- if the petition was filed between January 14, 1998 and April 30, 2001, you can also prove that you were physically present in the U.S. on December 21, 2000.
U-visa for Crime Victims Assisting Law Enforcement
The Victims of Trafficking and Violence Protection Act of 2000 authorized the “U” visa for immigrant victims of serious crimes. These visas were created due to rising public safety concerns, with the idea that foreign victims of crimes in the U.S. should be allowed to remain so as to provide law enforcement officials with information helpful in apprehending and prosecuting criminal offenders.
If you are approved for a U visa, you will be granted legal status in the U.S. for up to four years. Once you have held your U visa for three years, you may be eligible to apply for legal permanent residence.
U Visa Eligibility Criteria
In order to apply for a U visa using Form I-918, Petition for U Nonimmigrant Status, you must meet the following criteria and provide substantial evidence to U.S. Citizenship and Immigration Services (USCIS):
- You must have been a victim of a “qualifying criminal activity,” and this crime must have occurred in the United States or violated U.S. law. Indirect and bystander victims are also eligible to apply in certain circumstances.
- In the course of this criminal activity, you must have suffered substantial physical or mental abuse.
- You have useful information about this criminal activity
- You have been or will be “helpful” to law enforcement in order to bring the perpetrator of this crime to justice.
- You are admissible to the United States or you are applying for a waiver using Form I-192, Application for Advance Permission to Enter as a Non-Immigrant.
What Crimes Qualify Its Victims for a U Visa
- Violent crimes: murder, manslaughter, vehicular homicide, robbery, felonious assault and domestic violence. Stalking was also added to the list of crimes for petitions filed after March 7, 2013.
- Enslavement crimes: criminal restraint, kidnapping, abduction, being held hostage, forced labor, slavery, human trafficking, indentured or debt servitude, and false imprisonment.
- Sexual crimes: rape, incest, sexual trafficking, sexual assault and abusive sexual contact, prostitution, sexual exploitation, and female genital mutilation.
- Obstruction of justice crimes: perjury, witness tampering, withholding evidence.
- Fraud in foreign labor contracting: a later addition to the statute, made in 2014.
You Must Prove Substantial Physical or Mental Abuse
It is not enough to merely be victim of a qualifying crime. You must have suffered “substantial” physical injury or mental anguish as a result of this criminal activity and you must provide USCIS with medical records and affidavits to support your claim
You Must Have Helpful Information to Provide to Law Enforcement
One of the reasons for the authorization of U visas is that many U.S. immigrants do not provide information to law enforcement due to cultural differences, language barriers, and fear of deportation. Due to this reluctance to report, many perpetrators of serious crime have viewed immigrants as an excellent “target.”
In order to further the public safety objectives of these visas, your petition must be certified by a police officer (or other law enforcement official) who will attest that you were a victim of a qualifying crime and you are likely to be helpful to an investigation or prosecution of the crime.
Your Qualifying Family Members May Receive Derivative U Visas
Certain family members may be eligible to become derivative U visa recipients if the principal petitioner’s application is approved. These include your:
- unmarried children under age 21
- parents (if principal petitioner is under age 21), and
- unmarried siblings under 18 years old (if principal petitioner is under age 21).
You can submit Form I-918, Supplement A, Petition for Qualifying Family Member of U Visa Recipient along with your own petition or after your U visa is approved.
Consular processing means that person intending to immigrate to the United States goes to a U.S. embassy or consulate in his or her home country to complete the application for lawful permanent residence. This involves submitting forms and documents to the consulate, and attending an interview there.
Consular processing is “part two” of the application process for lawful permanent residency. “Part one” was either the immigrant’s relative getting a visa petition approved by U.S. Citizenship and Immigrant Services (USCIS) on the immigrant’s behalf or an employer obtaining labor certification and an approved visa petition for the immigrant.
Which Immigrants Must Go Through Consular Processing?
Most immigrants will have no choice but to use consular processing as their application method, especially if they are already living overseas. Immigrants who are living in the United States, but overstayed a visa stay or entered without permission, will have to leave the country to complete the process.
Paperwork Requirements Involved in Consular Processing.
When your relative or employer filled out your visa petition, your address or other information will have told the U.S. government which consulate would be most convenient for you. After your visa petition has been approved, a central office known as the National Visa Center (NVC) will take care of transferring your file to the appropriate consulate.
Exactly what happens next will depend in part on which embassy you’ll be interviewed at. You and the petitioner will have to fill out various forms and paperwork, and undergo a medical exam. But procedures vary as to where you send them once you’re done, and who you hear back from.
The Consular Interview
The final step in obtaining your visa is to attend an interview with a U.S. consular official. You’ll receive written notification of your interview date. The government uses the interview as an opportunity to verify the contents of your application after you’ve sworn to tell the truth, and check your medical, criminal, and financial records to see whether you’re inadmissible. If you’re applying based on marriage, it also allows it to ask personal questions designed to reveal whether your marriage is the real thing or a fraud to get the immigrant a green card.
For security reasons, you may not be approved at the interview itself. Instead, assuming all goes well, you will be asked to return to the consulate to pick up your immigrant visa.
Deferred Action for Childhood Arrivals (DACA)
What is DACA?
On June 15, 2012, the Department of Homeland Security announced the Deferred Action for Childhood Arrival program, which allows people who came to the United States as children to request Deferred Action (DA) and obtain work authorization for a period of two years, if they meet specific eligibility requirements described below and in the many resources listed at the end of this advisory.
People who apply for DACA must prove that they:
- Came to the US under age 16 and were under 31 on June 15, 2012;
- Continuously resided in the US since June 15, 2007;
- Entered without inspection before June 15, 2012 or otherwise had no legal status on June 15, 2012;
- Are in school, graduated from high school, have earned a GED, or have been honorably discharged from the Coast Guard or the US armed forces;
- Have not committed felonies, “significant” or multiple misdemeanors, or pose a “public safety” or “national security” threat.
What benefits does DACA provide?
DACA provides Deferred Action (DA) and work authorization for two years, with possible renewal. It does NOT provide a route to permanent status, and remember that DA is not in the statute; it is based solely on agency discretion.
In January of 2013, USCIS announced the I-601A Provisional Unlawful Presence Waiver, allowing the spouses and children of United States citizens to apply for the waiver within the United States. In 2016, USCIS expanded the provisional waiver program to include relatives of Lawful Permanent Residents.
Who is eligible to apply?
To apply for the I-601A waiver, you must:
- Be physically present in the United States;
- Have an approve I-130 Petition (by a relative), I-140 Petition (by an employer), or I-360 Petition (certain other special categories);
- Be inadmissible to the United States because you have spend more than 180 days unlawfully present here after your 18th birthday;
- Have a qualifying relative who would suffer extreme hardship if the waiver is not granted.
- The qualifying relative must be a US citizen or Lawful Permanent resident;
- The qualifying relative must be a spouse or parent (NOT your child, though hardship to a child can be part of the argument for hardship to the qualifying relative);
- The qualifying relative does not need to be the person who filed the I-130 petition for you;
- You can have more than one qualifying relative.
Who cannot or should not apply?
- If you entered the United States on a visa and overstayed.
- If you may be inadmissible for some other reason (criminal history, fraud, false claim to be a US citizen, or because you have health problems such as a history of alcoholism).
- If you have ever been in removal proceedings, or if you have previously been ordered deported, you must have your removal proceedings reopened and terminated before applying for an I-601A waiver.
- If you are subject to the “permanent bar,” you are not eligible. The permanent bar applies to people in two scenarios:
- You have been unlawfully present in the United States for a total period of more than one year after 1996, and have then re-entered or attempted to re-enter the United States unlawfully.
- You have been ordered removed from the United States, and then re-entered or attempted to re-enter the United States unlawfully.
Who cannot or should not apply?
In short, “extreme hardship” must be something beyond normal difficulties of family separation and relocation. Common scenarios where USCIS is likely to find “extreme hardship”:
- The qualifying relative is an active member of the US armed forces;
- The qualifying relative suffers from a serious illness, and treatment would not be available in the applicant’s country;
- The qualifying relative has a serious disability that would make life difficult in the applicant’s country;
- The qualifying relative would risk violence or persecution in the applicant’s country, for example, because the qualifying relative is a same-sex spouse and the applicant’s country has outlawed same-sex relationships.
If my provisional waiver is granted, do I still have to leave the United States in order to become a Lawful Permanent Resident?
Yes. A common misunderstanding is that the new waiver process eliminates the requirement to apply for a visa at the consulate abroad. The waiver can reduce the time period you have to spend abroad (from over a year, to just a few weeks or months). However, if you are not eligible to adjust status within the United States, you will still have to leave in order to obtain your immigrant visa from the consulate abroad.
If my provisional waiver application is denied, can I still apply for a hardship waiver at the consulate?
Yes, if your provisional waiver application is denied, you can still leave the United States and submit a regular I-601 waiver at the consulate.
What type of information should I gather for my application?
- Your immigration history (how many times you have entered the United States, what applications have been filed for you in the past, whether you have ever been in immigration court proceedings).
- Your criminal history (how many times you have been arrested and when, what you were charged with, what your sentence was).
- Think about how your qualifying relative would suffer if s/he had to stay in the United States without you, or if s/he had to leave the United States to go back to your home country. Consider your relative’s financial situation, medical needs, any history of mental health challenges or emotional trauma, educational history, etc.