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and unmarried or married children, as well as their parents and siblings. Make sure that you check the barriers for illegal entry and unlawful presence before submitting any applications. There are also other grounds of inadmissibility that can prevent you from getting a green card.
By means of the provisional waiver (I-601A). Undocumented immigrants who entered illegally and/or are accumulating unlawful presence in the United States can apply for the provisional waiver to obtain residency, provided they have a resident or U.S. citizen relative who will petition for them, or have any other kind of approval such as that of an employer or Visa Lottery. It is essential to prove extreme hardship to the resident or US citizen family member so that you may be granted this waiver. In the case of this provisional waiver, extreme hardship may only be to your resident or U.S. citizen spouse or parents. Remember that with the August 2016 waiver expansion, people who had deportation or removal orders from immigration court may now also qualify.
Through a U-Visa. Undocumented immigrants who have been victims of certain crimes in the United States and who cooperated with the authorities can obtain a U-visa and eventually lawful permanent residence status. It does not matter whether that person entered with or without a visa to the United States. For this process, the police, the District Attorney's Office, or another authority must certify the cooperation of the victim. Once certified, the process with USCIS can commence. The applicant may include their spouse and/or children under the age of 21 in their application. After 3 years under this U visa status, the applicant and derivatives may apply for permanent residence status.
By means of self-petition as a victim of abuse. The Violence Against Women Act (VAWA) allows undocumented spouses, parents and children of United States citizens or residents to self-petition if they have been a victim of battery or extreme cruelty by their citizen or resident relative. After the VAWA case is approved they can obtain permanent residence status. This law applies equally to women and men. The abuser is not needed at all to file the petition and will not be notified about this process
By means of asylum. Can be granted to those who have been persecuted or fear future persecution on account of any of the five grounds: political opinion, membership in a particular social group (sexual orientation and domestic violence, among others), religion, nationality, and race. The process should be initiated within one year of the arrival to the United States (in some cases, you can begin after the 1-year deadline due to extraordinary circumstances). After a year with asylee status within the U.S, a request for permanent residence status can be submitted.
Through the grandfathering of section 245 (i) of the Immigration Act. This allows residents and citizens or employers to petition relatives or undocumented workers in the United States, so that they may receive permanent residence through the grandfathered protection of the 245(i), only if they submitted an application from a family member or employer before April 30, 2001 and had physical presence in the United States on December 20, 2000 or submitted the application before January 14, 1998. Provided that persons are protected by this law, then forgiveness is granted for having entered illegally or accumulated unlawful presence.
Through abuse, neglect or abandonment of one of your parents if you are under 21. If you are under 21 years old and have been neglected, abused or abandoned by your mother or father in the United States or in your country of origin, you can petition yourself, and eventually obtain legal permanent residence status. The definition of abuse is expansive, as many have been beaten by their parents either with belts or shoes or sticks or by hand, hair pulling or jostling and slaps, but everything counts. If it is the case that your father or mother abandoned you and never worried to financially support you, and did not even speak to you for many years, you may be a victim of abandonment. If you think you may qualify, immediately consult before turning the 21 years of age.
EXPLAIN PROCESS IN FULL. Immigration law is expansive and covers many complex rules and regulations with very specific deadlines and cut off dates. When you speak to the attorney, make sure he or she explains the process in full detail and takes the time to explain it to you in a way that you can understand.
EXPERIENCE IN PARTICULAR AREA. Ask if they have experience in the particular area you need within the immigration field. For instance, not all immigration attorneys handle detention/removal cases.
LICENSED ATTORNEY. Make sure that the person is an attorney licensed to practice anywhere in the U.S. or is an accredited representative authorized by the BIA. For New York Attorneys, you can check the New York State Attorney Directory provided by the New York State Unified Court System at 212-428-2800 or https://iapps.courts.state.ny.us/attorney/AttorneySearch#search_result. You can check if someone is an accredited Representative by calling the BIA at 703-305-9029.
RETAINER AGREEMENT. Obtain a retainer agreement that specifies all the work that needs to be done and the payments that you need to make. Make sure you understand this contract and ask questions if you do not. Get a receipt when you make a payment and do not sign anything you do not fully understand.
RAPPORT WITH ATTORNEY. Establish a rapport with the Attorney. Don’t be shy about asking questions. You should feel comfortable and satisfied with the responses he or she gives you. You will be discussing stressful and delicate matters with this person on an ongoing basis. This is why it is important that you feel you could trust him or her.
IMMIGRATION PREPARERS. Immigration Preparers are not licensed to practice law and cannot give legal advice. They are people who complete forms for you for a lower fee (sometimes not so low). Immigration Preparers do not necessarily have an understanding of the law; instead of helping you, they may end up hurting your case even if they have the best intentions. This can have serious consequences for you. The Immigration Service can refer your case to court and place you in removal proceedings. This also applies to Lawful Permanent residents who are applying to Naturalize and become United States citizens.
VICTIMS OF FRAUD. Do not become a victim of fraud. Do not make assumptions about a person just because they look good to you or you have seen them on television so you assume they must be legitimate. Do not believe the Immigration Preparer if they make guarantees and be suspicious about statements that sound too good to be true. Be mindful if they tell you they have connections with the Immigration Service or pretend you will receive special treatment.
COMPLAINTS. Government agencies are cracking down on Immigration Preparers that have defrauded their clients by closing down their businesses. If you have been a victim of fraud by an Immigration Preparer you should contact the NYS Attorney General’s office at 1(800)771-7755 or the District Attorney’s office http://manhattanda.org/victimservices/immigrant_affairs.shtml the New York Department of Consumer Affairs at 311 or www.nyc.gov/consumers or the New York State Consumer Protection Board at 1(800)697-1220 or www.nysconsumer.gov.
One of the few ways that undocumented immigrants can obtain lawful status in the United States is with a U-Visa, offered to victims of crimes who cooperate with law enforcement. This visa grants legal status and employment authorization for 4 years. The wonderful aspect of this visa is that after 3 years with U-visa status, that person can apply for lawful permanent residency, and can include their spouse and children under 21 years of age, whether they reside within or outside of the United States. If the victim is under 21 years old, their parents can derive, as well as their siblings in some cases. Furthermore, the U-Visa pardons many grounds of inadmissibility, such as having entered illegally and most criminal convictions, although this is discretionary and must be consulted with an expert. A U-visa is better than Deferred Action in many aspects, especially since it creates a path to legal permanent residency.
Who is eligible for a U visa?
The applicant must be a victim who has suffered substantial physically or mental abuse and is willing to cooperate with law enforcement in the prosecution of the criminal activity. The criminal activities include: Felonious assault, sexual assault, sexual exploitation, rape, incest, torture, stalking, domestic violence, statutory rape, abusive sexual contact, prostitution, incest, human trafficking, kidnapping, abduction, involuntary servitude, blackmail, extortion, fraud in foreign labor contracting, among other crimes. The victim must have cooperated with the authorities (police, district attorney, family court, or Administration for Children’s Services, Department of Labor, amongst others) during the investigation and prosecution of the crime. The crime must have occurred within the United States no matter when it occurred.
How long does it take to get a U-Visa?
Formerly the U-Visa took little time to process. However, in recent years the waiting time has greatly increased. Currently, the waiting time is between 4 and 5 years in which the visas are available and actually granted. The waiting lines are increasing daily and thousands of people are anxiously waiting. According to immigration, as of October 2017, they are processing cases that were submitted prior to August 25, 2014. Based on this, it is estimated that it takes 3 years for U-visa requests to be put on the waiting list until a visa is available. You are granted deferred action and are eligible for a work permit once you have been notified that you are on the waiting list.
Why should I apply for a visa if the wait is so long?
If you have been waiting many years without any status and without any protection of the law, and the U-visa is the only alternative you have, then it’s better late than never. If you have no other legitimate legal alternative, then it is better to wait. Beware of offers to rapidly obtaining a work permit by an immigration preparer since this is used as a way to lure you in.
What are the benefits of requesting a U visa as opposed to other ways of adjusting status?
Having lawful status and being able to work legally and having a path to becoming a lawful permanent resident. The client does not have to leave the United States and will not have to undergo an interview.
What is the reason for the delay?
The problem is that USCIS only grants 10,000 U-visas per year for the entire country and the demand for these visas is much larger. Due to the increase in the number of people applying for U visas, the waiting period has augmented.
What should I ask my lawyer?
Your attorney has no control over USCIS processing times. Your lawyer must give you a copy of your receipt, and if you are on the waiting list, they should inform you that you are eligible for a work permit and must pay the immigration fees and any other fees charged by the attorney. Your lawyer should check your case routinely and let you know of any updates only if there is one.
Is there anything I should do?
Just wait until you are granted your visa. If you like, you can check the status of your case using your receipt by visiting the USCIS website: uscis.gov. Once there, go to "check status" and insert your receipt number where prompted. This tool will inform you whether your case is still being processed and if you are already on the waiting list.
I have been in the U.S. for over 10 years and I have U.S. citizen children, I pay taxes, I have never been arrested, and I have a sick child. Do I qualify for a Permanent Resident card?
It depends. If your case is in immigration court proceedings, you may qualify. There is a defense that requires more than 10 years within the U.S., good moral character, U.S. citizens or permanent resident children, spouse, or parents and abundant and convincing evidence that these family members suffer extreme hardship. The hardship suffered by the U.S. citizen or resident relative must be extreme and the burden is on you to demonstrate this. For instance, if your relative is gravely ill and/or has some sort of psychological ailment then you may qualify. Many factors will be considered that go beyond the usual suffering including economic, physical, psychological, country conditions among others in a totality of circumstances analysis.
Be cautious when using this type of defense since it only works when you are in immigration court proceedings. Some unscrupulous attorneys may purposely place you in removal proceedings in court without informing you of this, and how risky the process could be. In addition, they will promise you a work permit but will not inform you that they will submit an asylum application that you may not even qualify for or be aware of. Those attorneys will keep you hooked with a work permit for some time, but afterwards when your asylum case is denied and you are placed in removal proceedings, it will put you at risk of being deported. Keep in mind that every case is different. There are people who may legitimately qualify, but should consult and perfectly understand the process before investing their money.
My case is currently pending with USCIS; can I travel outside of the country?
That depends. If you have ever been without lawful immigration status (your visa or stay expired) from 6 months to 1 year, and you depart from the United States, you will trigger the 3-year bar for adjusting status. If you accumulate unlawful presence for more than 1 year, you will trigger the 10-year bar. This means that, although USCIS may have granted advance parole, you may travel, but you will be unable to obtain residency for 3 to 10 years. This warning is present in the Form I-131 instructions. Even though exceptions exist for certain people, do not travel without consulting with an expert first!
I am married to a U.S. citizen or Permanent Resident and I am being abused by that person; can I apply for immigration benefits on my own account? (Self-petitioner)
Yes. You may self-petition if you can prove that you have been abused psychologically or physically by a U.S. citizen or Lawful Permanent Resident spouse, parent, or child, can demonstrate good conduct, and that you initially married the abuser in good faith. The definition of domestic violence is very broad and does not need to be physical, but can also only be psychological. This protection is not only for women, but also for men and children.
I am being abused by my partner, but that person is not a U.S. Citizen nor a Permanent Resident, and I am not legally married to this person. Can I still obtain immigration benefits?
Yes, you may. If you prove that you were the victim of a crime (which includes, but is not limited to domestic violence) and you cooperated with the authorities (called the police, for example), you may obtain a U-visa. The U-visa allows you to legally work within the United States and affords you legal status for 4 years. After 3 years of U-visa status, you can apply for permanent residency. Read our article under the Immigration News tab and see our video regarding the U-Visa.
My relative was detained by immigration. I am not sure where they are. What should I do?
You need to hire an attorney as soon as possible so that they may locate your family member and consult with them. Your attorney will inform you if your relative is eligible for some type of defense that may evade their deportation. The attorney may also help your relative to be released from detention by means of a bond, assuming your relative is eligible.
The detention process can last months, and in some cases years depending on each specific situation. You should gather at least $1,500 to pay a bond. If the person detained has criminal charges, the sum of the bond will be much higher. Please know that your relative will have to appear before an immigration judge (unless they have a prior order of deportation in which case they will most likely be removed) and for that reason will require an attorney.
If I am undocumented, can I still travel within the United States or Puerto Rico?
It is risky to travel within the country and to drive without a license. You should consult with your trustworthy attorney before traveling since every case is different, but in general it cannot be predicted when immigration will check people, especially at airports, trains, and buses. Traveling to Puerto Rico may be even riskier.
If I am a permanent resident, can I travel outside of the United States with all the new government changes under Trump?
As a lawful permanent resident of the United States you have every right to travel outside of the country, as long as you do not have any arrests or other types of problems with the law before or after having obtained your residency. If you are hesitant, make sure to consult with your attorney first. Remember that you cannot stay outside of the country for more than one year, as you will have abandoned your residency.
If my residency is about to expire, can I travel outside of the country?
You should renew your permanent resident card prior to traveling outside of the country since upon your return, you will not be allowed to re-enter with an expired residency.
If my residency is about to expire, do I have to renew it in order to apply for citizenship?
Yes. You must pay to renew your permanent resident card, since they will not approve your Naturalization application with an expired green card.
If I entered the United State illegally and am married to a U.S. citizen or Permanent Resident, can they petition for me?
It depends. If you entered the United States just one time, and have no arrests, fraud, or contagious illnesses that may make you ineligible, then a petition can be filed and you may request a waiver for your unlawful presence and/or illegal entry. Read our article regarding the Provisional Waiver (last article in this TAB).
What if I feel discouraged by the lengthy processing times? Why do they keep changing?
Many immigrants are understandably frustrated with the exhausting and extremely lengthy processing times. However, processing times are subject to change. They can suddenly speed up, but more than usually they become longer waiting periods because of the workload immigration faces. Please keep in mind that all processes are different such as applications for permanent residency status, U-Visas, VAWAs, Naturalization, among others. Therefore, USCIS’s processing times will differ depending on the case and the time period in which it was submitted. Make sure to have your packets sent with tracking information to assure submission. Processing times are solely controlled by the immigration services (USCIS) and as a result no attorney can control them. For this reason, it is best to provide your attorney with your full cooperation to prevent any additional delays on your behalf.
There are numerous grounds of inadmissibility that prevent a foreign national from adjusting status to that of lawful permanent residency including health related, criminal, fraud and unlawful presence grounds. Those who entered the U.S. illegally or overstayed their visas cannot adjust status in the U.S. due to the fact that they have accumulated unlawful presence. If they accumulated unlawful presence for over 6 months, then they are barred to adjust status for 3 years, and if they accumulated unlawful presence for over one year they are barred from adjusting status for 10 years. This 3-10-year bar is only triggered when the person departs the U.S. In the old days if a US citizen husband wanted to petition his wife, who entered without inspection, the wife would have to wait for months or years in her country of origin for an I-601 waiver to be approved. Therefore, this provisional unlawful presence waiver was created back on March 4, 2013, to keep families together so they wouldn’t have to wait outside of the U.S. for their waiver to be approved. They could instead apply for the waiver within the United States.
On August 29, 2016, the provisional waiver for unlawful presence was expanded to include not only immediate relatives of U.S. citizens, but also all of the relatives and employment preference categories, including visa lottery winners, among others. This means that relatives, such as lawful permanent resident or U.S. citizen spouses and parents, children of all ages, and siblings could qualify, as well as all types of preferences for qualifying workers. If you have an I-140 employment based approval or I-130 approval for instance you could potentially qualify for this waiver.
In order to obtain lawful permanent residency status through this provisional waiver, you need to follow three steps. First, you need an approved family or employment based petition, or any other qualifying petition. Once you have this approval then you can submit a waiver. Once the waiver process is approved, then you can apply for an immigrant visa and start your consular processing case for permanent residency status. Although the waiver is processed within the United States and the applicant must wait for its approval inside the country, the applicant must nevertheless travel to their country of origin for their interview and approval of the legal permanent status. In this way they return with their immigrant visa to the United States where they will receive their legal permanent resident card by mail soon after.
The tricky and more complicated part of this waiver is that the foreign national needs to demonstrate that his or her United States citizen or lawful permanent resident spouse or parent would suffer extreme hardship. It is essential that you prove extreme hardship to the U.S. citizen or lawful permanent resident qualified family member. The interpretation of extreme hardship is a legal analysis that only your attorney should carefully determine with you. Physical and psychological health is considered, as well as economic factors and the current conditions of your country of origin, among other factors. An attorney with experience can determine if you qualify. Even individuals that had prior deportations or removal orders may also qualify for this waiver but only your attorney can determine the appropriate steps to be taken.
It is imperative to consult with an honest and trustworthy lawyer. Remember that big changes are usually followed by big scams where unscrupulous preparers are ready to take advantage of you. You must make sure you qualify before submitting the waiver. It is not recommended that you leave the country for your interview unless you are absolutely sure that you qualify and your waiver for illegal presence has been preliminarily approved. If you do not have other barriers that prevent you from becoming a resident, then you can would qualify for this process.
COMMON WAYS TO OBTAIN PERMANENT RESIDENCE
There are multiple ways of obtaining lawful permanent residency in the United States, some more common than others. One of these paths could be yours.
Through a family petition or marriage. Both U.S. citizens and legal residents can petition their relatives for permanent residence status. Residents can petition their relatives under certain categories: spouses or unmarried children. Citizens can petition their spouse,
Ana María Bazán Law Firm, P.C.