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Immigration FAQ and Answers
I am originally from Cuba, but now an American Citizen, how can I bring my parents over here to live in the U.S. with me?
There are two ways people can immigrate to the U.S. First, a U.S. citizen or permanent resident can sponsor an alien through “family based petition” In a Family Based Petition, a U.S. citizen or a permanent resident can sponsor his/her immediate relative. A U.S. citizen can sponsor an immediate relative to come to the U.S. without numerical visa limitation. There are specific requirements with regard to what constitutes an immediate relative and you should consult an experienced Immigration Attorney if you’re planning to sponsor a family member to come to the U.S. In family based petitions, a visa will be immediately available for the alien and his/her dependents to come to the U.S. The second way an alien can immigrate to the U.S. is through Employment Based Petitions. There are five (5) different employment based categories in which an alien can immigrate to the U.S.
I have an Approved Alien Petition; does it mean I can get my Green Card?
The process of getting a green card if you are currently in the U.S is called Adjustment of Status. Usually an alien who is physically present in the United States would apply to adjust his or her non-immigrant status to immigrant status or permanent resident status. To file for adjustment of status, the immigrant must not only be eligible to adjust, but must also not be statutorily barred from adjustment. Adjustment of status is “discretionary”. That is, even if the foreign national meets all the requirements, and is not under one of the statutory bar, the USCIS can still deny the case, providing there are legitimate reasons for the denial such as a negative factors in the case such as misrepresentation, application fraud, prior criminal convictions etc.
In general, most foreign nationals will be able to adjust their status if they meet the requirements and are not barred, even if they have one or more negative factors. Having immediate relatives and close family ties and friends may assist clients to overcome negative factors and allow the foreign national to be adjusted. However, that is never guarantee. In cases where there are negative factors that bar people from adjusting status, they may consult an experienced immigration attorney to discuss whether they qualify for a waiver.
In order to adjust one’s status, the person must be physically present in the US (or he/she can obtain an immigrant visa through the Department of State), and have an approved. Always consult an experienced immigration attorney on your next step which will be to determine whether you qualify for adjustment of status.
CAN MY SPOUSE WHO IS A FOREIGN NATIONAL STAY IN THE U.S. NOW THAT WE ARE MARRIED?
Whether a foreign national can remain in the U.S. after marrying a U.S. citizen depends upon how he or she entered the U.S. An applicant who has legal status to stay in the U.S., such as a non-immigrant visa, may obtain lawful permanent residency by filing a petition for alien relative by the U.S. citizen spouse and an application for adjustment of status. If the foreign national entered the U.S. lawfully, but overstayed his/her visa, then the foreign national is removable; however, despite his/her removability he/she will be able to adjust his/her status if they are married to a U.S. citizen. On the contrary, if the foreign national entered the U.S. unlawfully, then the foreign national will not be able to adjust his or her status in the U.S. Instead, he or she must leave the country. If the foreign national is currently facing removal in immigration court, and if he/she is qualified for “voluntary departure” he/she may apply with the immigration judge for voluntary departure so that there is no record that the applicant had been ordered to be removed from the U.S., which may bar the foreign national from coming back to the U.S.
MY GIRLFRIEND’S VISA HAS EXPIRED FOR TEN YEARS AND I AM A US CITIZEN, CAN SHE GET HER GREEN CARD IF I MARRY HER?
Marriage does not automatically confer any status to her, you must also petition for her. When a U.S. citizen marries a foreign national, he/she must petitioner sponsor the foreign national relative, using form I-130. When the foreign national is here in the U.S., the US citizen should also file form I-485 to apply for their relative to adjust his or her status and become a permanent resident. The Petition for an Alien Relative, Form I-130, simply states that the couple has a “bona fide” (good faith) marriage. The application for adjustment of status, I-485, is an application for the foreign national to become a permanent resident. In this case, when the United States citizen applies for the I-130, it is usually approved if the person can show that they meet the basic requirements for a good-faith marriage. However, your girlfriend who is a visa overstay or other undocumented aliens may in some instances not be able to adjust their status simply because he/she married a U.S. citizen. In some instances, the foreign national can apply for “cancellation of removal” if certain requirements are met.
ADJUSTMENT OF STATUS AND CHANGE OF STATUS
How is Adjustment of status different from a change of status?
A change of status usually is a change from one non-immigrant category to another. A foreign national that is currently in the United States can file an application to change their status from one non immigrant category to a different category. However, an adjustment of status application is an application for permanent resident A change of status is filed together with an application under a particular non immigrant category and allows the person to obtain the intended category. For example, an F-1 student who is currently finishing his school at a local University; he has a job offer from a prestigious employer and now wants to work as a professional worker under the H-1B category. His employer will file an application to change his status from F-1 to H-1B, accompanying his H-1B application. Another example is if a foreign national is currently in the U.S. as a Visitor and has a valid B-1/B-2 visa for six months. While here in the U.S., the foreign national was able to identify a business in which she is interested in investing. She purchased 55% shares of the company and now wants to remain in the U.S to manage her investment. She would be changing status from a B-1 visitor for Business to an E-2 Treaty Investor.
WHAT IS THE PROCESS FOR BECOMING A CITIZEN?
There are three (3) basic ways that a person can become a U.S. Citizen. The first and most obvious is by Birth (Jus Soli). Anyone who is born within the United States within the territories of its jurisdiction is considered a U.S. citizen, regardless of parents’ statuses. That is, even if the parent is an undocumented person, a child that is born in the United States and/or its territories is a U.S. citizen. The exception to this rule is if a person is born on an Indian reservation; in this case, the person must take the oath of allegiance before he/she can become a U.S. citizen. An alien can also become and U.S. citizen if he/she is naturalized. The third way a person can become a U.S. citizen is if he or she was under the age of 18 at the time his/her parent became naturalized, an adopted child of a U.S. citizen, or if he/she is a child of a U.S. citizen and permanent resident parent. Before the enactment of the Child Citizenship Protection Act in 2000, both parents must be naturalized (or are U.S. citizen), or in case of a divorced or single parents, then the parent who has custody must be a U.S. citizen, before the child can be a derivative citizen. Now, after the enactment of the Child Citizenship protection Act of 2000, only one parent needs to be a U.S. citizen for the child to obtain derivative citizenship.
What is Naturalization?
Naturalizationis the process where a permanent resident becomes a U.S. citizen. In order for an permanent resident to be naturalized, he/she must be at least 18 years of age, have continuous residency for at least 5 years and must meet the physical presence requirement (residing at least ½ of 5 years inside the U.S.). In addition, the person must have good moral character, must be able to speak and write basic English, and must understand the history and the government of the United States. The naturalization process can be cumbersome and may be difficult to traverse, especially if one as a criminal record. Therefore, an immigration attorney should be contacted if you decide to file your application to be naturalized.
My mother is old and does not speak fluent English. Can she still file for her citizenship?
A lawful permanent resident that is at least 50 years of age and has been a permanent resident for at least 20 years may be waived from the English exams and may take the Civic Exam (history and government exam) in his or her native language. Also, a lawful permanent resident that is at least 55 years of age and has been a permanent resident for at least 15 years may be waived from the English exams and may take the Civic Exam (history and government exam) in his or her native language. Additionally, a lawful permanent resident that is at least 65 years of age (senior) may take an English and Civic Exam that contain easier questions. Finally, under Section 312 of the INA, a lawful permanent resident may be waived from taking either test if he/she shows that he/she cannot study and/or retain information and language because of medical conditions. A doctor, psychologist, and/or psychiatrist must fill out form N-648 indicating the illnesses, the etiology of such illness, the condition of the foreign national , the DSM-IV Codes (if any), and the nexus (a connection) between the illness and why the alien cannot learn and/or retain information, or that the lawful permanent resident’s medical condition would inhibits the person’s ability to learn and study. Medical disability waivers are extremely difficult because of the inherent fraudulent aspect of the application. An immigration attorney with extensive experience in this area of naturalization law must be consulted before applying.
DEPORTATION/REMOVAL FROM THE UNITED STATES
What kind of crimes makes a person reportable or removable for the United States?
In 1996, Congress passed a shocking immigration Bill and President Clinton signed into Law. The "new" law, at that time, called Illegal Immigrant Reform & Immigration Responsibility Act of 1996 (IIRIRA) which became effective on April 27, 1996. The law amended a series of immigration laws and created a list of what is called “aggravated felony” See INA 101(a) (43). Some of these crimes include drug trafficking, crimes of violence where the maximum sentence is 1 year or more, sexual crimes, murder or attempted murder, owning, controlling, or commercializing prostitution, smuggling, and counterfeiting…etc. In addition, the IIRIRA created a category called crimes of moral turpitude. Although there is no list of crimes of moral turpitude, the USCIS refers to INA Section 101(f) define what is not “good moral character,” as well as previous case law and BIA administrative decisions to make the determination. For example, minor theft crimes that have a maximum sentence of not more than 1 year and an actual sentence of less than six (6) months will not be considered a crime of moral turpitude. However, two (2) of such crimes may be determined as crimes of moral turpitude. In addition, any crimes that show lack of “good moral character” that has a maximum sentence of at least one year, or if the person is actually sentenced of at least six (6) months, regardless of whether the sentence was actual jail-time or probation, the foreign national is removable as a crime of moral turpitude. Thus, if a foreign national, including a green card holder, committed a crime that is considered an aggravated felony or a crime of moral turpitude, the foreign national is removable.
RELIEF FROM REMOVAL
WHAT IS CANCELLATION OF REMOVAL?
When a foreign national is ordered to appear in an immigration court for a “removal hearing,” depending on the person’s status, he or she may ask for cancellation of their removal, often referred to as “cancellation of removal”. INA § 240A(a), 8 U.S.C. §240A(a) allows certain permanent and non-permanent residents to apply for cancellation of removal, either with USCIS, or to the Immigration Judge, if the foreign national had been ordered to appear in immigration court. INA § 240A (b), 8 U.S.C. § 240A (b) allows certain undocumented or overstayed foreign nationals to apply for cancellation of removal if certain qualifications are met.
WHAT IS VOLUNTARY DEPARTURE?
Voluntary departure is a relief under which a foreign national is applying with the Immigration Judge to allow the person to “voluntary” leave the U.S. without a removal order. The “relief” may only be granted by the Attorney General (the immigration judge or the Board of Immigration Appeals) and cannot be appealed to federal courts. The relief serves two main functions. First and foremost, it is an inexpensive way for the government to remove the foreign national from the U.S., without having to purchase their airplane tickets to deport a removable foreign national. The second purpose is it allow certain foreign national to leave the country without a removal order. The effect is that these foreign nationals will be able to apply at the consulate to reenter the U.S. relatively quickly without a bar (a statutory requirement that the person must remain outside the U.S. before allowing to reenter). A foreign national that committed a crime that is removable or overstayed less than 1 year can be petitioned by their United States citizen relative to come back to the U.S. Unfortunately, the bar for a foreign national that has overstayed for 1 year or more will remain.
WHAT IS ASYLUM?
Asylum is a process in which foreign nationals in the United States seek refuge because they are being persecuted on the basis of race, religion, nationality, political belief, or membership of a particular group. By definition, an asylee (an Asylum applicant) must meet the qualifications of a refugee. An asylee is “any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion…” INA Section 101, 8 U.S.C. 1101.
Essentially, the foreign national must prove the following:
- The foreign national is a member of a particular group that could be classified as a race, religion, nationality, political belief, or membership of a particular group;
- The foreign national must be outside of the native country. If the foreign national is in the United States, he/she is called an asylee. If the foreign national is outside of his or her home country, but are not inside the United States, then he/she is called a refugee. Although the law states that the foreign national must be unwilling OR unable to return to his or her home country, courts have construed that the foreign national must be unwilling AND unable to return to the home country. If it is determined that the foreign national can be removed to a different part of the country, then such person is not qualified as a refugee or an asylee.
- The government of the home country must not have the ability, or that they are unwilling, to protect the applicant from persecution. More often than not, it would be important if the foreign national can demonstrate that they are being persecuted by the same government or government sympathizers; aninally,
- The foreign national must prove that he/she was persecuted in the past and/or has well founded fear of future persecution. For example, if the foreign national has not been personally persecuted, but can show that the applicant’s immediate family members were persecuted or that he or she is on a black-list, then the foreign national may have credible fear of future persecution.
WHAT IS EXPEDITED ASYLUM APLICATION?
A foreign national may file an asylum application at the Port of Entry (POE) with an Asylum Officer if the person is entering the country. This process is called expedited Asylum application. If the Asylum Officer determines the applicant meets the initial eligibility, also called "prima facie" for Asylum application, the applicant may be paroled into the United States to file an Asylum application with USCIS. If the Asylum Officer does not believe that the applicant has prima facie for Asylum, the person will be given an opportunity to withdraw the application or can be removed from the U.S. through expedited removal. The applicant will have to prove the same qualifications as an applicant inside the United States. Often, however, the applicant only has a story to tell. The affidavit may be sufficient to show that the foreign national has prima facie cause for a parole into the United States while waiting to file a formal asylum application with the USCIS. However, if the officer determines that the applicant does not have a credible story, and thus does not have prima facie for an asylum application, the applicant will be denied entry. Because the applicant is an arriving foreign national, and not a foreign national that is inside the United States, he/she has no recourse and cannot appeal such decision. Of course, the alternative would be to contact a U.S. Consular office abroad and apply as a refugee. In recent years, the U.S. Department of State changed its policy and does not allow applicants to wait outside the U.S. Consulate to file applications. The applications must be processed by a third party bank before being forwarded to a U.S. Consulate. it may be unrealsitic to pursue an application from a hostile country.
I AM IN THE U.S. AND I WANT TO APPLY FOR ASYLUM, WHAT ARE THE STEPS?
There are two ways in which a foreign national inside the U.S. can apply for asylum. A foreign national inside the U.S. can apply for asylum with USCIS. If the applicant is under removal proceedings, he/she can apply with the immigration court. If the applicant applied with USCIS and the application is denied, he/she can still apply with the immigration judge when and if he is ordered to be removed from the U.S. Thus, a foreign national has two chances to file for an asylum application. To file for an asylum application, the foreign national must fill out form I-589, available on USCIS’s website. This is a very complicated application and the applicant must show all requirements met. Thus, it is crucial that the foreign national obtain professional help when filing. The foreign national must gather documents to support his or her qualifications. The most important document is the applicant’s affidavit. The affidavit must describe in detail and show evidence that would make the foreign national a qualified applicant. Other documents that may support the applicant’s arguments would be articles and statements of the country’s conditions, the political climate, evidence of government crack-downs, crime rate and statistics, articles of news papers, articles from human rights groups, any evidence that support the applicant’s contentions. Essentially, the evidence from the applicant’s affidavit must be internally consistent and credible. Other evidence must support the applicant’s position, thus showing that the applicant’s affidavit is externally consistent with information from other sources.
MY ASYLUM APPLICATION WAS DENIED, WHAT SHOULD I DO?
If USCIS and/or the immigration judge denied an asylum application, the applicant may appeal the decision with the Board of Immigration Appeals (BIA). The applicant will typically have 30 days from the date of the denial to send in a notice of appeal and appeal the decision with the BIA. The BIA will make a determination based on your appeal. The BIA may summarily dismissed the appeal without a decision or comment, dismiss the appeal with comments, or grant the appeal and grant the USCIS or the immigration judge to issue an approval, or grant the appeal and remand the case to the immigration judge or the USCIS to make a specific determination based on the factual information. If the BIA denies the appeal, the applicant may file an appeal with the Circuit Court of Appeals that resides over the applicant’s jurisdiction. If the Circuit Court of Appeals denies the appeal, the applicant may ask a rehearing from the court. Legally, even if the Circuit Court of Appeals denies again at the rehearing, the applicant may file a Writ of Certiorari with the U.S. Supreme Court. In practice, if the Circuit Court of Appeals denies an application at the rehearing, the alien will not have the opportunity to be heard by the U.S. Supreme Court. The reason is that the U.S. Supreme Court chooses only a few cases that have pervasive legal significance each year.
WHAT IS WITHOLDING OF REMOVAL?
The application for Asylum is also the application for withholding of removal. However, the standard for considering an Asylum application is different from the requirements for withholding of removal. To qualify for withholding of removal, the applicant must demonstrate that the applicant's "life or freedom would be threatened" on grounds of race, religion, nationality, political opinion, or membership in a particular social group;there is a “clear probability” that the applicant will be persecuted if he/she were to be removed, a much higher standard than “well founded fear” under an Asylum application. If withholding of removal is granted, the Court must also consider the withholding of the applicant’s family members. However, the applicant will NOT be able to adjust and may only be able to obtain employment authorization. Unlike an approval of an Asylum application, withholding of removal may be terminated if there is a change in the foreign country’s condition in which the applicant will not be persecuted if he/she were to be returned; if the withholding of removal application would be a fraud; or if the applicant committed one of the crimes that would have made him/her ineligible prior to the approval.
WHAT IS THE UNITED NATIONS CONVENTION AGAINST TORTURE?
A foreign applicant may also apply under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in conjunction with the Asylum application and the withholding of removal application. The applicant must “check a box” on top of the I-589 application in order for the Service or the Court to consider CAT. To qualify under CAT, the applicant must show that “more likely than not,” or there is “substantial grounds to believe” that he/she will be “tortured” upon being removed to his/her home country. Torture is an act by which severe pain or suffering (physical or mental) is intentionally inflicted to obtain information or a confession, for punishment, for intimidation or coercion, or for another reason based on discrimination; and the act was inflicted by the government, or by others under the government’s consent, or by a group that the government is unwilling or unable to control. If the applicant is successful under CAT, the applicant will be granted either (1) Withholding of Removal or (2) Deferral of Removal if granted unless the applicant is ineligible for one of the categories stated above under Asylum Application.
WHAT IS A MASTER CALENDAR HEARING?
A Master Calendar Hearing refers to the foreign national’s first appearance in the immigration court. In a Master Calendar Hearing, the foreign national is present with his or her attorney in the immigration court based on the government’s allegation that the foreign national is removable. The foreign national will be asked to pronounce and spell his or her name for the record. The court then reads the allegations by the government, which usually contains basic facts such as the foreign national’s name, country of nationality, and method of entry. Usually, the allegations are basic and only contain indisputable facts. Thus, the attorney will concede to the allegations. The court will then ask if the attorney has identified potential applications on behalf of the foreign national. Depending on a variety of factors, the attorney may or may not have identified applications that the foreign national may be qualified. If not, the attorney may ask the court to continue (delay) the Master Calendar hearing until another day, at which time, the attorney must identify certain applications in which the foreign national may be qualified, such as cancellation of removal, extreme hardship waiver, 601 waiver, 212(c) waiver, Section 245(a) waiver, and asylum. If the court agrees with the attorney, it will provide the attorney additional time to prepare such application and preserve arguments for the Merit Hearing.
WHAT IS A MERITS HEARING?
The Merit hearing, sometimes called “an individual hearing” is essentially an administrative hearing in which the permanent foreign national’s attorney will present his/her case to show that the foreign national is qualified for certain applications. The opposing counsel, which is the government’s attorney, will present his/her own evidence to rebut the foreign national’s qualifications. The hearing is adversarial in nature; and thus, the foreign national’s attorney will be able to direct questions toward the applicant and witnesses and the opposing counsel will have the opportunity cross examine the witnesses, including the foreign national at issue. The immigration court will determine if a removable foreign national is qualified for any application, such as an application for withholding of removal, or an application to waive removal, based on certain qualifications and extenuating circumstances. The attorney will present the statute that governs the qualifications of the applicant. The attorney will also present case laws and administrative decisions by the Board of Immigration Appeals, based on previous decisions, as well as evidence to show that the applicant is qualified for such application. If the applicant is filing for waivers, such as an extreme hardship waiver, they may also have friends and family members present to testify on the applicant’s behalf. It is important that the applicant present as much documentation to support the application as possible.
EMPLOYMENT BASED IMMIGRANT PETITION FAQs
I OWN A FOREIGN COMPANY DO I NEED TO INVEST $I MILLION DOLLARS INTO THE U.S ECONOMY IN ORDER TO GET AN IMMIGRANT VISA?
Usualy No. Often time, people confuse the E-2 Treaty Investor with the E-B5 which is the fifth preference employment based immigrant visa. Under the E-B5, a foreign national may come and invest in the United States. If approved, the person does not need a labor certification and usually a visa is immediately available. The person must invest at least $ 1 Million in a populated area or $500,000 in a less populated (rural) area. This is a substantial amount of investment for most foreign nationals and also is not a small number for U.S. residents or citizens. Thus, this category is not practical for most investors. If the foreign national is a national of a “treaty country,” one that has a Friendship and Commerce Treaty and/or a Navigation and Commerce Treaty with the U.S, then the foreign national may apply for an E-1 Treaty Trader or the E-2 Treaty Investor visas, depending on the person’s qualifications. The person does not have to invest one million dollars. In fact, the person does not even need to invest hundreds of thousands of dollars. The Immigration and Naturalization Act and federal regulations require only that the investment to be “substantial.” Substantiality is entirely dependent on the type of investment. For example, opening or purchasing and operating a junk yard may require a higher investment than opening or purchasing a convenience store or a retail shop at a mall.
Legal Disclaimer: Always consult with a skilled immigration attorney to analyze your individual situation, and never under any circumstance construe the foregoing as legal advice or as creating an attorney client relationship between BOS Legal, LLC and yourself. Consult the team at BOS Legal for your individual free initial consultation