Cancellation of Removal

Even if someone is in the United States illegally, if they have been here long enough, in some situations, an immigration judge may allow the person to stay and obtain a green card.

The law says that an individual in removal proceedings (deportation) may apply for cancellation of removal if he can establish 10 years of continuous physical presence in the United States, good moral character, and demonstrate that his removal would result in exceptional and extremely unusual hardship to his qualifying relative. The “qualifying relative” must be a citizen or lawful permanent resident of the United States and could be his parent, spouse, or child under 21 years of age.

Cancellation of Removal for Non-Permanent Residents – Example

Take for example a person who walks across the Mexican border. If the person is not caught by Immigration for ten years, and either marries a US citizen or has US born children, no serious crimes, and can show the required level of hardship, may in the discretion of the immigration judge remain in the US.

Let’s take each of these one by one:

1) The ten years must be “continuous”. What happens in the event the person is in the United States for several years and then returns home, only to return illegally at a later date?. If he was not out of the country for more than 90 days, or 180 days in the aggregate, then the ten year period will not have been broken.

2)  and 3) Being married or having children meets the technical requirement of having a qualified relative. However, remember the real key is showing that removal of the United States would result in exceptional and extremely unusual hardship to the qualifying relative. This is a high standard to meet, and although it does not mean that the hardship has to reach a level of being unconscionable, it is more than the type of hardship which would normally occur when someone is deported from the United States.

4) Finally, there is the good moral character standard which must be met. Some would argue that a person who broke the laws of this country by entering without inspection should not be deemed to be a person of good moral character. However, the law is not written with this in mind. Generally, if no serious crimes have been committed, and a person has ties to the community such as membership in religious, fraternal or community organizations, and submits good moral character letters, then the Immigration Judge will normally find good moral character.

Cancellation of Removal for Non-Permanent Residents – Real Case Study

To review a set of circumstances which involves Cancellation of Removal for a Non-Permanent Resident, see www.bradentonimmigrationlawyers.com, for the article, “Cancellation of Removal: Profile 2.

Cancellation of Removal for Lawful Permanent Residents – How a “Joint” Can Lead to Deportation

A lawful permanent resident i.e. someone who has a “green card”, may be subject to deportation for commission of criminal acts. However, the person may be allowed to remain in the United States if cancellation of removal for lawful permanent residents is granted by an Immigration Judge. There are three main requirements to qualify for the waiver, called Cancellation of Removal for Certain Permanent Residents. First, the non-citizen must have been lawfully admitted for permanent residence for at least 5 years; Secondly, there must be proof of residence in the United States continuously for 7 years after having been admitted; and Thirdly, the resident must not have been convicted of an aggravated felony.

Cancellation of Removal for Lawful Permanent Residents is Discretionary

If these three requirements are met, granting the waiver becomes a matter of discretion for the judge. In other words, the judge has to review the type and nature of the crimes and weigh positive and negative factors, or equities, in order to determine if a person should be given a second chance to remain in the United States.

It is important to note that for immigration purposes, even a “no contest” plea is considered a conviction.

When the permanent resident presents his or her case, he should show remorse for criminal conduct, and that efforts have been made toward rehabilitation. The judge will consider such equities as payment of federal income taxes and child support, ties to the community such as being involved in charitable organizations, long term residence, evidence surrounding the criminal act and the period of time that has elapsed since the criminal act(s).

Possession of Marijuana and Cancellation of Removal for Lawful Permanent Residents

Take for example a lawful permanent resident who is convicted of possession of less than 20 grams of marijuana. If the person has left the country and is detained upon returning, the person may be considered an “arriving alien”, and as such, would be under mandatory detention. In other words, although the person is a lawful permanent resident, this type of crime, as well as others, could present a situation where detention is required until and unless the resident applies for relief such as cancellation of removal, and a final hearing before a judge is held.

Although drug charges are taken seriously by immigration officials, the law recognizes that in some situations a person should not be deported. The court wants to know what kind of person this is. Was this a one-time occurrence, or is it likely that the person will commit more crimes. Where does the person’s family live, and if they are in the US, do they have legal status?

Based on these factors, the judge may allow a person to remain in the US.

For a more detailed description of cancellation of removal for lawful permanent residents and how a person can wind up in this situation, see our blog, “Immigrant Profiles No. 1” at:  http://www.bradentonimmigrationlawyers.com/cancellation-of-removal/cancellation-of-removal-immigrant-profile-no-1

Who to Trust For Answers to Fiancé Visa Questions

The process of getting a K1 fiancé visa or a visa to allow a foreign national fiancé to enter the United States can be a very confusing indeed. Although properly prepared and filed applications for K1 fiancé visas are usually approved, a good deal of scrutiny goes into the screening of these applications by consular and immigration officers due to fraud, abuse, and trafficking issues. Engaged couples who have a genuine relationship and valid purpose in applying for a K1 fiancé visa should look a competent immigration attorney for answers to their fiancé visa questions. Beware of opportunistic companies, online and offline that promise faster processing times and guaranteed approvals.

Legal Answers to Fiancé Visa Questions

When it comes to getting legal advice, you should only rely upon legitimate K1 fiancé visa lawyers for answers to your fiancé visa questions and expert assistance. Never resort to following advice about highly questionable, if not illegal methods to circumvent the legal process. Again for applicants with a bona fide relationship and properly filed cases, approvals are historically high. Do not risk being denied by wasting your time with inexperienced or illegal K1 fiancé visa companies.

There are a lot of things that the foreign national fiancé and the US citizen need to know about the application process in order to minimize delays and avoid any costly mistakes. You must be able to provide all the required documents proving identity and financial capacity, proof that there is indeed a bona fide (valid) relationship from which you are now moving towards marriage, and you should be prepared to answer all the detailed fiancé visa questions that the consular officer will ask during the K1 fiancé visa interview.

Fiancé Visa Questions About Processing Times

Although K1 fiancé visa application procedures are discussed on a host of government and private website, there are no reliable guarantees as to the amount of time it would take to complete the process. There may be additional supporting documents you can submit in order to expedite the process and avoid requests for evidence that can seriously delay the process. Having an immigration attorney to guide you through the process is advisable in order to avoid unnecessary delays complications.

An immigration attorney can explain all you need to know about the immigration process and is the best person to help you deal with the legal requirements of applying for a K1 fiancé visa. Once the initial Petition for Alien Fiancé is filed, your immigration attorney will guide you every step of the way through the process of coming to the United States and, eventually applying to obtain your green card. Be aware that once the foreign national fiancé arrives in the United States with their K1 fiancé visa they must marry the petitioner within 90 days of their arrival if they wish to adjust status to obtain a lawful permanent residence. Please see our article and broadcast on green card by marriage cases.

Sometimes honest but ill prepared applicants are denied. Hiring a fiancé visa lawyer could prove to be particularly helpful in the interview stage where the foreign-national fiancé can be prepared beforehand to answer the detailed fiancé visa questions that would likely be asked by the interviewing consulate officer. It is best to be well prepared as the officer’s fiancé visa questions may be grueling as the consulate officer tries to validate all information to rule out any fraudulent or criminal intent.

H1B Visa Cap Has Been Reached for Fiscal Year 2011

But don’t worry, while you may have missed the opportunity to obtain H1B employment if your application wasn’t already filed, H1B visa lawyers report that a new season of opportunity is about to begin.H1B Visa Lawyers Kick Off New Season With H1B Visa Information Webinar

H1B Visa Lawyers Information Webinar

Goldman & Loughlin PLLC, an H1B Visa Lawyers Firm will be offering free H1B Visa Webinars  three times per day at 11AM, 2 PM and 9PM (Eastern time) every Monday, Wednesday and Friday.

If you want to learn more about  last year’s cap you can read the press release below– otherwise we’ll see you at the webinar.

Tom & Peter
The Immigration Guys

H1B Visa Lawyers Update for DHS

DHS Press Release: USCIS Reaches FY 2011 H-1B Cap Jan. 27, 2011 WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011. USCIS is notifying the public that yesterday, Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011. The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000. Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 that arrive after Jan. 26, 2011. USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee. On Dec. 22, 2010, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the ‘advanced degree’ exemption. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Pursuant to the Immigration and Nationality Act, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY2011 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to: * extend the amount of time a current H-1B worker may remain in the U.S.; * change the terms of employment for current H-1B workers; * allow current H-1B workers to change employers; and * allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as scientists, engineers, or computer programmers. For more information on USCIS and its programs, visit www.uscis.gov.

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Again, our H1B Visa Lawyers look forward to the new and productive H1B Season ahead. Register for the H1B webinar by clicking here now

Our H1B Visa Lawyer await you….

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US Customs and Border Patrol Releases  Report on ILLEGAL ALIEN APPREHENSIONS BY FISCAL YEAR (October 1st through September 30th)

Have you wondered  exactly how many undocumented aliens have actually been picked up by the Border Patrol? Well wonder no more. The US Customs and Border Patrol  has just released their  “Report on ILLEGAL ALIEN APPREHENSIONS BY FISCAL YEAR” (October 1st through September 30th)

Let us know what you think?

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Form I-751Late Filing

In a previous post we discussed conditional permanent residence and the need for timely filing  an I-751 petition to remove the conditions within  90 days prior to the two year anniversary of being granted conditional status.

We also mentioned that jointly filed petitions  may be filed late where you can demonstrate good cause and extenuating circumstances.

This post sparked a lot of followup questions about exactly what qualifies for “good cause” and “extenuating circumstances” and how late is too late, etc.

Well, unfortunately there is no clear answer here. What we can say is that it is possible to file form I-751  years past the deadline and still have USCIS accept and approve the petition so long as you have not already received an Notice to Appear (NTA) in immigration court proceedings. (and, it may still be possible to file with USCIS during proceedings).

Because the decision to accept your late filing is discretionary you really need to take the time to clearly explain the circumstances that have led to the delayed filing.  And, while it is impossible to predict, we have heard of cases where Form I-751 late filing  (i.e., jointly  filed) petitions have been accepted and approved over a decade after the filing deadline.

Immigration Guys
Form I-751 Late Filing Issues

What is Conditional Permanent Residency?

All foreign nationals who were married less than two years at the time they were granted permanent residence status (i.e., a green card) obtain what is known as conditional permanent residency status. The same applies to their derivative children.

This conditional status is virtually the same as an unconditional permanent residence status except that the conditional immigration status expires two years from the date it was granted. Accordingly, green cards issued in such cases will reflect an expiation date two years from the date it was issued.

Why does USCIS grant conditional permanent residency status?

In order to prevent marriage fraud, Congress enacted laws that effectively treat all marriage based applicants for permanent residency as suspect where the underlying marriage is less than two years at the time of approval and admission.

How do I remove the conditions to my green card?

To remove this conditional permanent residency status you will need to file a petition using Form I-751 to have the condition removed within 90 days prior to the two year anniversary of being granted conditional status. While USCIS will typically mail you a reminder, it is the your responsibly alone to timely file the petition. We suggest that you mark your calendar with a reminder approximately 20 months from the date your conditional green card status was issued.

What happens if I forget to file within the 90 day filing period?

Failure to timely and properly petitioning to remove the condition may lead to your removal (deportation) from the United States. USCIS may accept a late I-751 petition may but you will need to demonstrate good cause and extenuating circumstances for filing late. The acceptance of a late I-751 petition is discretionary and may be denied. Timely filing to remove your conditional permanent residency status is extremely important

Is filing an I-751 all that is required of me?

No, in addition to Form I-751 you will also need to submit sufficient supporting documents that would tend to demonstrate the validity of your ongoing marriage.

Must my U.S. citizen spouse file and sign the petition with me?

Yes, your spouse must sign the I-751 petition with you. But, there are a few exceptions:

• Good Faith Marriage Exception – If you have divorced prior to the two-year anniversary of obtaining conditional permanent residency, you may request a good faith marriage waiver by selecting the appropriate box on Form I-751. Petitioners seeking this waiver may file at anytime, before or even after the two year anniversary of admission.

• Battered Spouse / Child Exception – If you are a battered spouse or child, you may also self petition to remove the conditional permanent residency to your green card.

• Extreme Hardship Exception – If you can demonstrate that you, your child or even a subsequent spouse would face an extreme hardship, you may self portion to have the conditions removed.

Do I need an attorney to assist me in removing conditional permanent residency?

Based on our experience we believe that it is highly advisable to have a qualified immigration attorney assist you with this important stage in the immigration process. USCIS takes its role in eliminating marriage fraud seriously. Even where marriages are bona fide, improperly filed petitions to remove conditional permanent residency status or weak applications may lead to delays, denials and ultimately deportation.

Please feel free to contact us for assistance.

Tom  & Peter
The Immigration Guys

Related articles

• Green Card Marriage (socyberty.com) conditional permanent residency

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Immigration Marriage Fraud

Marriage Fraud is a big issue with USCIS. Last week I came across an article that surprised me. It said that U.S. immigration officers were ”snooping” on  social networking sites such as Facebook, MySpace Twitter and a host of others to check marriage fraud. While I am against marriage fraud I began to wonder if the same sources used by investigators could be equally useful in demonstrating bona fide martial relationships.

Social networking sites in so many ways have changed the way people meet in general. And these sites have even helped spark many a romantic relationship that has lead to marriage.

Marriage Fraud is Rare

While there are no doubt a few unscrupulous individuals they prey upon the lonely and desperate with immigration / marriage fraud as their goal, the fact is that many have found their true love and soul mate on the Internet. In fact, the overwhelming majority of immigration based marriages are bona fide marriages based on traditional values of love and affection.

So when it comes to marriages between foreign nationals and U.S. citizens (or permanent residents), it is becoming more and more common to find couples that have, at least initially, met and developed their relationships via social networking sites.

Do Not Engage In Marriage Fraud

According to immigration law there is absolutely nothing wrong with one marrying knowing that they will be obtaining an immigration benefit—so long as it is not the sole or primary purpose of the marriage.

With this in mind, prospective applicants for marriage based lawful permanent residency (i.e., green cards), should be aware that their record of communication between each other on Facebook and Twitter, etc. may actually present them with a new opportunity to better document and demonstrate how their relationship developed.

In fact, much of what is communicated between individuals on social networking sites is tantamount to public record and is available for nearly all to see–including DHS and U.S. Embassy interviewers and investigators. That is why it is such a great investigate tool. But it should also be used to aid in demonstrating a true, bona fide marriage and not only to uncover marriage fraud,

In cases where applicants have scant evidence of their valid relationship, they should take the time and effort to obtain additional documentary evidence  including offering evidence of their social network communications, emails, text messages, etc., in addition to the traditionally accepted evidence in order to avoid allegations of marriage fraud

Immigration Guys

Related articles

• US snoops on social networks to check marriage fraud (newstatesman.com)
• USCIS Monitoring Online Networks to Determine Immigration Cases (immigration.change.org)
• Homeland Security is monitoring social networks with pretend “friending” (lostremote.com)
• Avoiding Marriage Fraud

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Goldman & Loughlin, PLLC  Immigration Lawyers interview comments on the DHS’s plans to possible terminates as many as 17,000 removal cases.

When asked to comment on this ground breaking policy change, immigration attorney Peter J. Loughlin said “It is a common sense approach to immigration reform that has been far too long in the making—but welcome nonetheless.

According to the firm’s senior partner, Thomas W. Goldman, “The reason for the government’s huge backlog of cases (248,000 nationwide) is that so many of these proceedings are brought against immigrants with no criminal background and who pose little or no threat to the nation–instead of focusing on those with a criminal or terrorist history.

As great as this new policy seems to be, Loughlin is quick to point out that, “While several of the law firm’s clients currently in proceedings may benefit by being able to file for a green card if their immigration court case is terminated, the vast majority across the country may not be eligible.

Goldman added that “many of the proceedings to be terminated may be in cases where the respondents are not eligible to legalize their status at all. This would place them in a limbo status where they would simply return to living a lacuna of sorts until the government decides what to do with them.”

Tom and Peter
The Immigration Guys

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• “The Immigration Balancing Act: ICE Memo and High Removal Statistics Reveal a Stacked Immigration System” and related posts (immigrationimpact.com)
• Faced With Backlog, Feds Dismiss Deportation Cases Against Non-Criminal Immigrants (propublica.org)
• Homeland Sec. Dismisses Deportation Cases (judicialwatch.org)

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How to Get a U-Visa for Victims of Crimes and Criminal Activity

There is a special nonimmigrant Visa or status established for victims of qualifying criminal activity committed in the United States and this article will focus on how to get a U-visa.. This includes crimes/activity  committed in Indian Country, military installations, and the territories and possessions of the United States.

But this is not enough. The victim must also have information about the criminal activity and the victim must have been helpful, is being helpful, or is likely to be helpful to the investigation or prosecution of the criminal activity.

Benefits of a U Visa?
What are the benefits of a U Visa and U Visa status? Well, there are many. The first thing is that the applicant need not be physically present in the United States in order to apply. And if granted the U Visa, it is typically granted for a period of four years, in which case the applicant will also be eligible to work in the United States. They will receive an employment authorization document.
After three years in the status, they may be eligible to apply for a Green Card, and if they have qualified family members, these members may also obtain derivative U Visa status.

How to Get a U-Visa During Immigration Court Removal Proceedings

In addition to these benefits, I would like to briefly discuss two other benefits that are often overlooked. One is for local permanent residents. That is those who already have a Green Card, but find themselves in immigration court in removal proceedings to deport them from the United States. In this case, if they are victims of a crime and meet the other qualifying requirements, they may also apply for a U Visa.

How to Get a U-Visa Video

In addition, non Green Card holders, those who are in the United States illegally and find themselves as respondents in immigration court in removal proceedings, they may also apply for a U Visa, again, if they meet the qualifying requirements.

The point is, if you feel that you may be eligible for a U Visa and you are in immigration court, it’s very, very important that you notify your immigration attorney right away.

Qualifying Criminal Activity
What constitutes qualifying criminal activity? Well, the first thing you need to know is that it can take place at the federal, state, or even the local level. Now, Congress has enumerated a number of criminal activities that qualify. I’ll go through them in turn.

Rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, being held hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury, and any attempt, conspiracy, or solicitation to commit any of these crimes or criminal activities.

Qualified Victim
What constitutes a qualifying victim? The victim must have suffered substantial physical abuse, or the victim must have suffered substantial mental abuse. And as you can appreciate, many times these go hand in hand. There is also what’s known as the nexus requirement, and simply this is that the victim’s suffering must be a result of the underlying, qualifying criminal activity.

Certification Requirement
And finally, there is the certification requirement. A federal, state, or local official investigating or prosecuting the qualifying criminal activity must certify that the victim is being, or will likely be, or has been helpful to the official’s investigation or prosecution.

Perhaps the most common question we get about U Visas is about filing and the documentation requirements for applicants. As you can appreciate, as with most things in immigration, it’s all forms driven. There is a form for filing for U Visa relief, and it is called form I 918. However, be aware that there is a supplement to this form. It’s called form I 918 supplement B.

This supplement should be completed by the prosecuting or investigating agency, and it has to be signed by the authorized agency official. When filing the supplement, it has to be filed concurrently with form I 918. So you file them together.

The applicant must also prepare and file with form I 918 a detailed personal statement. When I say detailed, I mean that it absolutely should include all of the details and facts surrounding the event, how its affected you, and how you’ve assisted in the prosecution or in the investigation of this criminal activity, and how it affects you today. All of the details and facts that would tend to qualify one for U Visa relief should be contained in the personal statement.

How to Get a U-Visa and the Recommended Supplemental Documentation

In addition to the required documents and forms, there are some recommended supplemental documents that I believe you should submit with your application, as well. The first thing that comes to mind are police reports. Typically in these events when there are criminal activities, police reports are filed. If this is the case, you’ll want to be sure to obtain copies and submit them with your application.

• Transcripts and Court Records: If the case is being prosecuted or was prosecuted, you’ll want to obtain records that substantiate this. 

• Affidavits of Witnesses: These can be eyewitnesses of the event or even friends or family who may have seen you immediately or shortly after the event who can testify as to, perhaps, injuries that you had or how it’s affected you. Don’t overlook this immportant issue. 

  Along that same line, you may want to try to get affidavits from police and prosecutors who you worked with. This would be in addition to the supplement B, and it can be helpful at times if you’re able to obtain it.

• News Articles: If there were news articles about the event and you and what happened, you’ll probably want to have news clippings. Now, if you don’t actually have the news clippings themselves, be aware that most newspapers nowadays have an online source where you can pull up old articles and print them out. 

• Photographs: If you do happen to have photographs of yourself immediately after the event, perhaps depicting your injuries, this can be helpful. However, be sure to submit them with an affidavit of authenticity. 

• Medical Reports: Typically in these events, someone goes for medical treatment immediately thereafter, or sometimes ongoing. If this is the case, you’ll want to get doctor, hospital, medical reports and submit those with your application as well. 

• Psychological Reports: Many times victims are psychologically traumatized and they don’t even fully appreciate this. Sometimes it affects their lives for months, and many times, years later. If you feel this may be your situation, it may be advisable to go to a psychiatrist or psychologist or other mental health professional to obtain an evaluation and a report to substantiate the mental injuries that you may have sustained.

This list here is by no means exhaustive, so if you have other evidence that you feel would support your claim and more, by all means include those as well. And the agency has been liberal in accepting such evidence on an ongoing basis. You’ll want to submit as much as possible with your initial application, but feel free to supplement as you obtain more evidence.

Tom and Peter
The Immigration Guys

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• All 10,000 Visas for Crime Victims Used Up (immigration.change.org)
• How to get a U-visa