10 Nov DO I HAVE ANY HOPE TO GET LEGAL STATUS?
By Attorney Nancy E. Miller, Reeves Miller Zhang & Diza
President Obama has repeatedly called for Congress to address the need for Comprehensive Immigration Reform (CIR). As we head into the holiday season, Paul Ryan, the newly-minted Speaker of the House, responded with what is, essentially, coal in the stocking. He said that no comprehensive immigration reform bill will be introduced or entertained in the House while President Obama is in the White House. So, CIR is not on the horizon.
However, there are still numerous ways to obtain a green card right now. At Reeves Miller Zhang & Diza we would encourage everyone to fully explore all of their options. The following examples are just a few ways to obtain a green card.
One option is a family-based immigrant petition. Immediate relatives (spouse, unmarried child under the age of 21or parent if the U.S. citizen is over the age of 21) of U.S. citizens (USCs) have special immigration priority and do not have to wait in line for a visa number to become available for them to immigrate. Family petitions for spouses and unmarried children of lawful permanent residents (LPRs), for married sons and daughters of U.S.C.s and for brothers and sisters of U.S.C.s are also possible although there is a waiting time before they become available. How long varies depending on the category and the country of origin.
Immediate relatives (IR) who entered the U.S. with inspection are able to obtain their green card in the United States. This process is called adjustment of status.
If the foreign citizen has to return home to complete their immigration process, they can now seek a provisional waiver of the 10 year unlawful presence bar that will be tripped when they leave to United States to consular process.
Provisional waivers allow the applicant to submit the request from inside the U.S. and wait for the decision here. Once approved, the applicant departs for their immigrant visa interview at a U.S. Consulate. This waiver avoids lengthy separation of family members. The provisional waiver applies to aliens who entered the United States without papers, who came in on a crewman visa, who entered the United States on a fiancé visa but did not marry their petitioner and who entered on a visa but overstayed or violated the visa and are not in the immediate relative category.
Other waivers are available for those with various other grounds of inadmissibility. Those who entered the United States using false information or false documentation and can show that their USC or LPR parent or spouse would suffer extreme hardship may be able to get a waiver. Non-citizens who have convictions for various criminal offenses may be able to obtain a waiver if they can show that their USC or LPR parent, spouse or son or daughter would suffer extreme hardship. Due to some recent court decisions, many non-citizens may be eligible for criminal conviction waivers even if they were not before.
Waivers also exist for those who obtained their green cards through false information and want to clear their record so they can naturalize.
Another option is cancellation of removal. Cancellation of removal allows qualified individuals to obtain a green card if they have lived in the U.S. for at least ten years, have good moral character and can show that their U.S. citizen, or Lawful Permanent Resident parent, spouse or child would suffer exceptional and extremely unusual hardship if the applicant were forced to leave the United States. Applicants are eligible to obtain employment authorization as soon as their application is filed. With work authorization, one may apply for a social security number, work legally and obtain a state-issued driver’s license.
Non-citizens who are studying in the United States may be able to turn that education into both a non-immigrant work visa and a green card depending on what they are studying.
While not technically lawful status, another option is Deferred Action for Childhood Arrivals (“DACA”). DACA is available to a person who: (1) was under the age of 31 as of June 15, 2012; (2) entered the U.S. before the age of 16; (3) has resided in the U.S. since June 15, 2007 up to the present date; (4) is currently out of status; (5) is in school or has graduated from school in the U.S. (or is a veteran of the Coast Guard or Armed Forces); and, (7) has not been convicted of a felony or a significant misdemeanor.
More than one million individuals obtain legal permanent resident status each year. In order to find out if you could be one of them, consult with a knowledgeable and experienced immigration attorney.