Immigration & Naturalization
IMMIGRATION & NATURALIZATION
Our Immigration & Naturalization practice assists noncitizens at every stage of their immigration journey, from asylum to self petitioning under the Violence Against Women Act (VAWA), to ultimately becoming a United States Citizen. Additionally, we provide removal or deportation defense for persons who are detained, or who have an outstanding Notice to Appear (NTA).
You may be able to appeal an adverse immigration decision to the Board of Immigration Appeals (BIA) or the Administrative Appeals Office (AAO), such as when a petition has been denied by USCIS. For example, if you accidentally provided inaccurate information personally or by way of a third party, you may be able to appeal the decision and present evidence that can result in a fair decision. Appealing an adverse decision can be especially important where the decision may lead to additional complications such as, being charged with immigration fraud for submitting erroneous documents.
Asylum, Cancellation, C.A.T. & Withholding of Removal
Asylum - In his or her discretion, an Immigration Judge may grant asylum to a person suffering persecution or who has suffered persecution in their country of origin based on the person's: race; ethnicity; religious belief; political position or opinion; or affiliation with a particular social group. To be granted asylum in the United States a person must: ask for asylum within one year after entering the United States (there are few exceptions to this requirement); be credible; and be able to prove past persecution or a well-founded fear of future persecution, based on the grounds mentioned above.
Cancellation of Removal - Under certain circumstances, an Immigration Judge may "cancel removal" or deportation of a person in removal proceedings and issue a green card to the noncitizen. To receive cancellation of removal, a person must prove: that they have resided in the United States continuously for 10 years prior to the application; that they have good moral character; that they have not been convicted of certain offenses; and that removal would result in exceptional and extremely unusual hardship to certain family relatives. Permanent Residents may also qualify for Cancellation under similar but different circumstances.
U.N. Convention Against Torture (C.A.T.) - The United States will not force a person to return to a country when there are substantial grounds for believing that the person would be in danger of being tortured. As such, if an Immigration Judge decides that it is more likely than not, that a person will be tortured in the country designated for removal, the person is entitled to protection under the Convention Against Torture. However, a person who receives relief under C.A.T. may be removed from the United States to a safe country.
Withholding of Removal - As with asylum, the United States may not remove a person to a country if it decides that the person’s life or freedom would be threatened in that country because of the person’s: race; ethnicity; religious belief; political position or opinion; or affiliation with a particular social group, membership in a particular social group, or political opinion. Unlike asylum, Withholding is not discretionary. If a person establishes eligibility, Withholding must be granted.
*The chart in this section shows additional differences between Asylum, Cancellation of Removal, UN Convention Against Torture and Withholding of Removal under INA § 241(b)(3).
Consular Processing & WAIVERS OF INADMISSIBILITY
As part of the journey to become a permanent resident or secure a visa, some people will apply at a U.S. Consulate abroad; some by choice, the vast majority because they are ineligible to "adjust status" in the United States. The process of a applying at a consulate, or "consular processing", is mostly controlled by the Department of State (DOS) and handled by the National Visa Center (NVC) and the various U.S. Consulates. Consular Processing can be cumbersome and inconvenient, as it requires the use of the DOS website and involves uploading various documents.
Significantly, noncitizens who are required to travel abroad as part of their permanent resident application process run the risk of triggering a bar - or being banned from the United States for several years. Therefore, it is important to secure a waiver of inadmissibility prior to leaving the country where the applicant is subject to one of the grounds of inadmissibility. These waivers can forgive certain actions and allow noncitizens to re-enter the United States if they are not otherwise inadmissible.
Deportation / Removal Defense
The United States removes noncitizens from the country via the Deportation or Removal process. Persons are typically ordered removed when they have violated some section of the Immigration and Nationality Act (INA). (See: the grounds for inadmissibility or deportation found in the INA §§ 212(a) and 237(a), respectively). Removal proceedings typically begin with the U.S. Department of Homeland Security (DHS) issuing a Notice to Appear (NTA), which can be filed against any noncitizen, including nonimmigrant visa holders and green card holders alike. After being initiated by DHS, the case will typically be transferred to immigration court for adjudication.
The first appearance for those in removal proceedings is usually a Master Calendar Hearing or "MASH", where the noncitizen will have a chance to accept or deny the charges brought against him or her. (The process is similar to an arraignment in criminal court). The noncitizen may or may not have additional court appearances before ultimately appearing at his or her individual hearing, akin to a trial in criminal court. Depending on the circumstances involved, an Immigration Judge will either order the noncitizen's deportation or dismiss the proceedings.
It is extremely important that anyone who has received an NTA appear in immigration court. Failing to appear without reasonable cause will likely result in harsh penalties, including: being ordered removed in-absentia; inadmissibility for 5 years; or a 10 year bar from applying for either - voluntary departure, cancellation of removal, registry, adjustment of status, or change of status.
Some noncitizens are subject to detention while awaiting their day in immigration court. Under certain circumstances, a noncitizen may even be subject to mandatory detention. When a noncitizen falls within the mandatory detention grounds of the Immigration and Nationality Act (INA), he or she may be denied a bond hearing, denied bond, and remain detained during the pendency of the removal proceedings. A noncitizen may avoid mandatory detention in certain situations, including instances where: the noncitizen is not taken into immigration custody by ICE within a certain amount of time after being released from criminal custody; the noncitizen has not been charged as “deportable” or “inadmissible” under one of the specified grounds in the INA; or if the noncitizen has been subjected to prolonged mandatory detention. Whether a noncitizen is allowed to post bond can depend significantly on the jurisdiction in which the proceeding is held.
Employment Based Immigration
Foreign workers may obtain legal permanent residency in the United States if they are able to establish that they have unique skills, and/or, are being offered a job in the United States that will not displace a qualified U.S. worker, and that will not have an adverse effect on the wages and working conditions of U.S. workers. The process for obtaining permanent residency based on employment typically consists of three phases, each reliant upon the next. Namely: (1) the labor certification; (2) the visa petition; and (3) the application for permanent residence. Further, each of these three phases has multiple steps. Most of the complication usually arises at the labor certification stage.
Labor Certification Application - A “labor certification” is a certification by the U.S. Department of Labor (DOL) that a shortage of qualified U.S. workers exists to fill a job and that the worker will be paid the “prevailing wage”. One of the most important factors for a successful labor certification is an accurate determination of the minimum requirements needed to perform the job. A significant amount of time is, therefore, spent obtaining and digesting information and then drafting the appropriate paperwork by applicants or their representatives. Supporting documentation must be prepared, and kept by the employer for five years, to be submitted if it is requested by the DOL. Small employers should be especially mindful of keeping records as they may be more likely to be audited. For example, in determining whether the foreign worker might exert undue influence over the employer seeking the labor certification, the DOL’s ETA Form 9089 explicitly asks: whether the company has fewer than 10 employees; whether the employee has an ownership interest in the company; and whether the employee has a familial relationship with any of the owners, stockholders, partners, corporate officers, or incorporators. If the employer answers “yes” to any of these questions the DOL will likely audit to investigate further and it may be challenging to procure a labor certification. However, answering “yes” to a particular question does not mean automatic denial of the application.
The Visa Petition - After receiving an approved labor certification, the foreign worker will be able to submit a visa petition to U.S. Citizenship and Immigration Services (USCIS). The purpose of the visa petition is to prove to the Immigration Service that: (1) the foreign worker's job has been certified by the DOL; (2) the foreign worker meets all of the requirements listed on the labor certification; and (3) the foreign worker's employer has sufficient resources to pay his or her salary. This step will also establish the immigrant preference classification (EB2, EB3 etc.). The preference for which a foreign worker qualifies correlates with his or her wait to become a legal permanent resident.
Application for Permanent Residence - The last phase in the process is the application for permanent residence (applying for a green card). Depending on the circumstances, the noncitizen may apply for permanent residence from within the United States or from outside the United States. When applying from inside the U.S., noncitizens are not usually subject to interviews with the local USCIS district office. However, when noncitizens undergo consular processing, or apply from outside the U.S., they are always required to attend an interview. Although getting a labor certification is undoubtedly the most challenging part of the process, complications may arise when applying for permanent residence.
Family Based Immigration
A U.S. citizen or lawful permanent resident (LPR) may petition for his or her family member, and under certain limited circumstances, the noncitizen family member may self petition. Family based immigration is the most popular way in which noncitizens obtain legal permanent residence. For every family visa petition, an applicant must prove (1) the required familial relationship, and (2) that the petitioner has the required immigration status (U.S. citizen or LPR) to petition for the noncitizen.
Persons wishing to immigrate to the United States will not have an immigrant visa immediately available to them, unless the noncitizen is an “Immediate Relative” of a U.S. citizen (spouses, parents, and minor children). Persons who are not immediate relatives are usually referred to as "preference relatives" and are subject to numerical visa limitations. As a result of the numerical limitations, the United States has implemented preference categories for preference relatives, which often means that a visa will not be available to them for several years. The preference categories are:
- First preference: unmarried sons and daughters of U.S. citizens;
- Second preference:
- 2A- spouses and children of Lawful Permanent Residents (LPRs);
- 2B- unmarried sons and daughters of LPRs;
- Third preference: married sons and daughters of U.S. citizens; and
- Fourth preference: brothers and sisters of U.S. citizens.
*Note that there is no category for a married son or daughter of a LPR (green card holder).
The date that the I-130 visa petition is filed with USCIS becomes, upon approval of the I-130, the beneficiary’s priority date in the preference system. The Department of State releases "Visa Bulletins", which show when a visa is or will be available to a preference relative.
In all of the immigrant visa preference categories, only the primary beneficiary needs to establish the required familial relationship with the petitioner. The person’s spouse and minor child(ren) are eligible to immigrate under the same petition as "derivative" beneficiaries.
A United States citizen may petition for his or her foreign fiancé(e) so that the couple may be together while the intended spouse adjusts his or her status (gets a green card). To successfully petition, the U.S. citizen must prove: (1) that the couple has met in person within 2 years of filing the fiancé(e) visa petition; (2) that the couple intends to marry within 90 days of the fiancé's admission to the U.S.; and (3) that both parties are free to marry. The requirement that the parties meet in person may be waived where, meeting in person would violate strict and long-established customs of either party's culture or social practice; or if the requirement to meet in person would result in extreme hardship to the United States citizen.
*A U.S. citizen may also petition for his or her foreign spouse so that the couple may be together while the foreign spouse adjusts his or her status.
Green Cards (Adjustment of Status)
Adjustment of Status allows a noncitizen to obtain permanent residency and a green card without having to leave the United States to apply for an immigrant visa abroad at a U.S. Consulate. Of note, a green card identifies an individual as a permanent resident, but is not tied to the actual status of the noncitizen. That is, a person may have legal permanent resident status but not have a green card. Similarly, a person may physically have a green card issued by USCIS, but may have lost permanent resident status. Adjustment of Status is a huge benefit, since leaving the United States may trigger one of the grounds of inadmissibility or result in the applicant being barred from the United States for a period of time. To qualify for adjustment of status an applicant must have been inspected and admitted or “paroled,” and be in lawful status - hence the adjustment of "status". Additionally, the applicant must not have worked illegally in the United States after 1977. Importantly, a visa number must be “immediately available” to the applicant at the time of the application. Immediate relatives, as stated above, always have a visa number available to them. However, every other familial relationship is subject to the quota and preference category system.
*See family based immigration above for more on the preference system.
Naturalization & Citizenship
U.S. citizenship can be acquired by: being born in the United States; by birth overseas to one or more U.S. citizen parent; and by naturalization after acquiring permanent resident status. To successfully naturalize, the applicant must:
- be a lawful permanent resident (LPR);
- be at least 18 years old;
- have good moral character for the five years (or required time period) prior to his or her application, and not be barred from naturalizing;
- be able to read, write and speak basic English;
- be able to pass a test on US history and government;
- have been residing in the US as an LPR for at least five (5) years, or if LPR status gained through marriage and currently resigning with spouse at least three (3) years;
- have been physically present in the US for at least half of the required residency period;
- not have disrupted their continuous presence in the US for the required residency;
- believe in the principles of the U.S. Constitution; and
- take an oath of loyalty to the US, administered by the USCIS or a Court in a naturalization ceremony.
*Limited exceptions apply to the requirements above.
Under the law, there are significant differences in rights and protections of naturalized U.S. citizens and lawful permanent residents (LPR). For example, LPRs remain subject to the grounds of inadmissibility and deportability. This means that an LPR returning to the United States after a trip can be denied admission and entry in certain circumstances, and may even be detained. Additionally, because there is no statute of limitation on the grounds of inadmissibility and deportability, LPRs, like all other noncitizens, remain vulnerable to changing immigration statutes. Conversely, although there are certain situations under which a naturalized citizen may be "denaturalized" or have their citizenship rescinded, citizens are not generally subject to the immigration laws.
It is important to note that applicants must disclose detailed information about themselves and submit to background checks when applying for naturalization. This scrutiny may cause removal proceedings to be instituted against an applicant, if the applicant committed some act to justify or warrant being place in removal proceedings. Nonetheless, citizenship insulates a person from the ever changing immigration laws and is therefore extremely beneficial for every permanent resident who desires to live in the United States.
There are visas for three types of entrants: refugees, immigrants, and nonimmigrants. Refugees and immigrants enter the United States with the intention of remaining permanently, whereas most nonimmigrants enter for a temporary purpose. United States immigration law presumes that all persons coming to the United States, including nonimmigrants, wish to remain permanently in the United States. Thus, in order to qualify for a nonimmigrant visa, a person must overcome the presumption that they intend to remain in the United states ("immigrant intent"). However, the “dual intent doctrine,” states that a person’s desire to remain in the United States or become an LPR in the future, by itself, should not disqualify the person from being admitted or cause a visa extension (depending on the type of visa) to be denied. Still, evidence of an application for an immigrant visa can weigh against the applicant, and can hinder the person’s ability to gain admission, obtain an extension of stay, or change status.
U Visa & The Department of Labor
U Visa - Individuals who have been a victim of serious crimes, and have suffered “substantial physical or mental abuse as a result” may be eligible for a U Visa. To qualify for a U Visa, the victim:
- must have been helpful to federal, state, or local law enforcement official;
- must currently be helpful to federal, state, or local law enforcement official; or
- be likely to be helpful in the future to a federal, state, or local law enforcement official.
There are provisions that allow the victim to adjust their status to legal permanent resident after three years. Only 10,000 U Visas are available per year.
U Visa Certification by the Department of Labor - The Department of Homeland Security lists certain federal law enforcement agencies that may certify U visa applications. As of April 2, 2015, The Wage and Hour Division of the U.S. Department of Labor (DOL) will consider completing U Visa certifications, (Form I-918, Supplement B), for the following eight crimes:
- involuntary servitude;
- obstruction of justice;
- witness tampering;
- fraud in foreign labor contracting;
- extortion; and
- forced labor.
In most cases the DOL will interview the petitioner regarding their allegations to determine whether or not the request meets the requisite factors to consider certification. Should the DOL determine that the request is related to an ongoing wage and hour investigation, the DOL will notify the appropriate Wage and Hour Division district office and investigator. The DOL only completes Form I-918, Supplement B certification. The petitioner is responsible for completing the remainder of the U Visa petition and submitting any other required information to the Department of Homeland Security.
In sum, if you are a non-citizen who has had your rights violated by an employer, you may be able to secure a U Visa and ultimately, legal permanent residence, in addition to obtaining any other labor and employment relief under federal and state law.