Immigration law has grown into a complex and convoluted area of law.
Too many variables determine whether a foreign national may legalize his/her status in the U.S.
Immigration law has grown into a complex and convoluted area of law. There are too many variables that determine whether a foreign national may legalize his/her status in the U.S. In many cases, if the foreign national has overstayed a visa, this can also impact the location where he/she may legalize status. Many of the cases have to process through the U.S. consulate abroad in order to obtain an immigrant visa. The applicant can then enter the U.S. and apply for his or her residency card (also known as a Green Card).
We handle family based immigration petitions which include:
- Spouses, parents and children (under 21 years old) of United States citizens
- Spouses and children (under 21 years old) of lawful permanent residents (green card holders)
- Unmarried children (over 21 years old) of lawful permanent residents (green card holders)
- Married children (regardless of age) of United States citizens
- Brothers and sister of United States citizens
Other family based cases:
- Fiancé Visa (I-129f)
- Adjustments of Status in the U.S.
- Renewal of residency card (I-90)
- Removal of conditions (I-751).
In order to qualify for adjustment of status (apply for a green card) in the U.S., the applicant must be legally eligible. Eligibility is determined by several factors. Generally, the applicant must prove that he or she was lawfully admitted into the U.S. For example, the applicant used a student or visitor visa when he or she entered the U.S. Prior pending petitions may also help an applicant become eligible for a green card in the U.S. Under INA 245(i), if an applicant has a prior pending petition that is dated prior to April 30, 2001, then he or she may be eligible to pay a penalty fee of $1,000.00 and apply for a green card in the U.S.
When an applicant is not eligible to obtain a green card in the U.S., he or she can apply for Consular Processing. This legal process consists of completing all filings in the U.S. and attending an interview at the U.S. Consulate Office in his or her native country. In most cases the applicant will finalize all filings in the U.S. within a two year period and then attend an interview in his or her native country. The total time abroad is between 7-10 days. This will allow time for the applicant to receive medical and criminal clearance prior to his or her interview. Prior to attending this interview abroad, you want to make sure that all filings are correct, that you have the correct supplemental documents in your possession and that your interview has been confirmed.
There are different avenues to a green card. Some more complex than others and some are available in the U.S., while others require travel abroad. These possibilities should be discussed with an attorney before you apply for any immigration benefits.
Litigation / Immigration Court
Our firm handles complex cases that are pending before the Executive Office for Immigration Review (EOIR) or Immigration Court. These cases are time consuming and procedurally complex. This process is initiated by the Office of Chief Counsel who will file a Notice to Appear “NTA” in order to commence removal proceedings against an individual. Upon filing an NTA with the Immigration Court, the Court has the power “jurisdiction” to determine whether the individual will be removed or will remain in the U.S. It is important to note that while a foreign national has a right to an attorney, however, this right comes at no cost to the government. In other words, unlike criminal court, in Immigration Court you must pay for your attorney. Additionally, failing to appear at you scheduled hearing will also have a devastating impact on your case. Unlike criminal court, where the judge may or may not issue a “bench warrant,” the immigration judge will deport the applicant “in absentia” or in his or her absence. Undoing this type of order is difficult and sometimes irreversible. Due to the backlog in immigration court, cases will sometimes take months or even years to finalize. Our firm will be by your side throughout this process.
In Immigration Court we handle the following:
- Removal/Deportation Defense
- Cancellation Removal non lawful permanent residents
- Cancellation of Removal for lawful permanent residents
- Motions to reopen
- Motions to set aside prior deportation orders
- Bond Hearings
- Adjustments of status
- 212(c) Waivers
Removal defense is extremely complicated and can have a life-altering impact on an applicant. Mistakes can be costly and can impact your eligibility moving forward. In some instances, mistakes will cause an applicant to suffer a permanent detriment to his or her case. It is imperative that you seek the advice of an attorney prior to going to court.
Waiver are sometimes referred to as “pardons” in the immigration context. These are required when an applicant is not otherwise eligible for the benefit sought. For example, if an applicant has a past crime that deems him/her ineligible for a green card, a waiver may be utilized to waive that particular crime and allow him or her to receive a green card. Waivers are typically used in cases involving crimes, fraud/misrepresentation, prior removal orders, alien smuggling, and unlawful presence. In order for many applicants to qualify for legal status, they may need the approval of a waiver prior to adjusting their status. You should consult with a lawyer in order to determine what, if any waivers, are required for your type of case. Our firms handles the following types of waivers:
- I-601A Provisional Waivers for unlawful presence. These types of waivers are used when the applicant has accrued over 365 days of unlawful presence in the U.S. In order to qualify, the applicant must prove “extreme hardship” to his or her qualifying relative. A qualifying relative for purposes of an I-601 waiver is defined as a spouse or parent who is either a U.S. citizen or lawful permanent resident.
- I-601 Waiver. This waiver can be used for a variety of reasons including, crimes, fraud, alien smuggling and unlawful presence. When addressing crimes, this waiver is typically used when an applicant has a more serious criminal history. In general, rehabilitation, remorse, family ties and other factors are considered the adjudicating officer when exercising discretion.
- I-212 Waiver. This type of waiver is generally used when an applicant has a prior removal order. Specifically, this waiver can be used to request permission to reapply for admission into the United States after Deportation or Removal.
Victim of Criminal Activity (U Visa)
The nonimmigrant U status (U Visa) is a specific program that is reserved for people that have been victims of criminal activity. In general, if an individual is a victim of a criminal offense, as defined by immigration law, and the individual suffers physical or mental abuse, he or she may be eligible for a U visa. This process involves the assistance of local law enforcement or the local district attorney’s office. The purpose of this law is to encourage victims to report criminal activity without fear of suffering immigration consequences. Given the currently yearly cap of 10,000 U visas, the processing times can last several years. If you think you are eligible for a U visa, or have ever been a victim of a crime, call our office for a confidential consultation.
In some cases a prior criminal conviction may deem the applicant ineligible for immigration benefits. This will depend on the type of crime (drug, violence, etc.), the classification of the crime (misdemeanor or felony) and the sentence received (time in jail ordered by the judge). While crimes will make some immigration cases more difficult for approval, the applicant can seek to modify the prior criminal record in order to qualify present day. Our firm has successfully litigated hundreds of cases that required modification of a prior criminal conviction. If you have a prior criminal history and you are thinking of applying for an immigration benefit, please call our office for a confidential consultation.