As an immigration lawyer there are a handful of situations that you encounter more frequently than most. While the fact-scenarios differ in each case based the potential client’s personal history, the same general rules apply when first considering whether that person should hire an attorney and seek an immigration remedy.
The following, while not legal advice, is a list of some of the most common questions that I hear every week:
I’M MARRIED TO A U.S. CITIZEN. HOW CAN I GET A “GREEN CARD”?
The path to “legalization” or citizenship always depends upon current immigration status. If you are already a Lawful Permanent Resident (“LPR”), then you are well on your way. You can file to become a U.S. Citizen (“USC”) after 5 years of being an LPR or 3 years if you are married to a USC. Sometimes, however, the path toward citizenship is a bit more complicated. Whether or not you will be required to leave the United States for a period of time prior to returning with a visa obtained through your marriage to a USC depends upon a complete review of all your entries and exits into the United States, lawful or not. There are some permanent barriers to living in the Unites States lawfully even if you are married to a USC.
WHAT SHOULD I DO IF I AM ARRESTED BY ICE (“IMMIGRATION AND CUSTOMS ENFORCEMENT”)?
Unfortunately, most people don’t have a lot of information about what happens when a family member or loved one is in ICE custody or even how a person ends up in ICE custody. The most common way a person finds themself in ICE custody is as a result of a simple traffic stop. Local city police, in general, have the power to arrest people for something as small as a minor speeding ticket. Once that person is placed into police custody, the chances that immigration will find out are great. Immigration then places a “hold” on that person so that they cannot bond out.
Once the criminal matter is taken care of, the person who is the subject of the immigration hold will be transferred to ICE custody. There are three things that a person who is in ICE custody must know.
Do NOT lie. It is very important to not give any false information to the officer who is interviewing you, especially when you may be eligible to file for an immigration remedy.
Be Nice. Cooperate with the officer unless you feel you are being harassed or being forced to answer a question that you are uncomfortable with
Ask to Speak to Your Attorney. Tell the officer that is interviewing you that you want to speak to an attorney when they are reviewing the charging documents. Other details, specifically regarding the bond amount or whether you will be released or detained, is information that can be readily available to your family members or your attorney.
I’VE BEEN IN THE U.S. MY ENTIRE LIFE. I CAME OVER WHEN I WAS A SMALL CHILD, AND BARELY SPEAK SPANISH. DO I QUALIFY FOR SOMETHING?
Until recently, the answer was “no”. There are still no visas available for someone who was brought into the United States as a child.
The good news, however, is that on June 15, 2012, President Obama signed an Executive Order regarding a process that is now being called Deferred Action. Deferred action would allow certain persons without status to remain in the United States for undetermined period of time with a work permit. The order is intended to provide relief to those who were brought to the United States as children and who are in school or have served in the military.
In general an applicant must be between the ages of 15-30, must have been brought to the US before the age of 16, and must have completed or be currently enrolled in high school or working toward their GED. Individuals are advised not to apply if they have committed a serious misdemeanor or felony. Even those with minor misdemeanor convictions should speak to an attorney before applying to be included in this program. Finally, the applicant must also prove that they have lived in the continuously in the U.S. through June 15, 2012 to receive a work employment card.
I’VE BEEN A VICTIM OF A CRIME AND I’VE HEARD THAT I MAY BE ELIGIBLE FOR A VISA.
There is a special non-immigrant visa, called the “U-Visa,” for those who have been the victim of very specific crimes, and have suffered substantial mental and physical abuse due to these crimes. The law also requires that the victim be helpful in the investigation and/or prosecution of the crime and are willing to continue to do so. Most importantly, not all crimes qualify under this category.
MY CHILD WAS BORN IN THE U.S. AND IS TURNING 21 YEARS OLD. I WANT THEM TO FILE A PETITION FOR ME SO THAT I CAN FINALLY HAVE LEGAL STATUS IN THE U.S. WILL THIS WORK?
The answer is maybe. Although your adult child may be able to file and receive approval on an initial petition for you (the “I-130”), you may not be able to actually obtain a visa right away or at all.
If the parent has lived in the United Sates without lawful status and must return to their home country to apply for a visa, he or she may not be eligible for an unlawful presence waiver. This may result in detrimental outcomes where the parent may need to stay in their home country for up to 10 years until they qualify to re-enter. A complete review of all of the parent’s entries and exits into the United States, lawful or not, must be made prior to the child deciding to file a petition on their behalf.
I’VE LIVED IN THE U.S. FOR TEN YEARS AND HAVE NO CRIMINAL RECORD. CAN I GET A WORK PERMIT?
No. There is no 10-year work permit or visa. There’s a false belief that a visa may be available to someone living in the United States for 10 years or more. In limited circumstances only, a person who has resided continuously in the United States for 10 years or more may be eligible for a type of relief called Cancellation of Removal for non-permanent residents. This remedy, however, is available only to those persons who have been placed in removal proceedings and can also prove that their LPR or USC child or spouse would experience extreme and unusual suffering if the person in proceedings were to be deported.
There is often no legal remedy for those that desperately need help and for those have lived in worked in the U.S for a very long time. As a lawyer I feel a tremendous amount of responsibility to ensure that potential clients are left with solid advice so that they can make good decisions about how to proceed in their case. Whenever I’m consulting with someone, I often keep in mind that while there may not be remedies available to them, it’s empowering to become informed and to learn more. Consulting with a lawyer is always a good start.