By Devin Connolly & Nancy E. Miller
Countless numbers of people are waiting for immigration reform. They may be personally residing in the United States without lawful status, or they may have family members or close friends in that undesirable position. The one thing they all have in common is that they are waiting for some form of immigration reform. Well, it appears they have a long wait. New legislation would require that the House and Senate reach an agreement on what and how to form the Immigration & Nationality Act. At the moment, that does not seem likely. And, any development on prosecutorial discretion promised by the President will have to wait until at least after the November election. And it is anyone’s guess as to what form that will take.
So, what happens in the meantime? Anyone who has family members with lawful status in the United States may be eligible for a green card. This may even be true if they misrepresented a material fact in order to enter the country or if they came without papers, have unlawful presence or if they have a criminal record. It may even be true for those who were previously deported if they returned with inspection. Intending immigrants with those additional problems may need waivers but waivers do exist. Those with highly marketable skills may be able to immigrate through employment. If they are afraid to go home because of negative political developments in their home country, they may be able to obtain asylum in the United States.
In addition, there are potentially 4,000 cases granted each year in Immigration Court for those who have been residing in the United States for at least ten years, have not been convicted of a disqualifying crime, can show good moral character and have a USC or lawful permanent resident parent, spouse or child who would suffer exceptional and extremely unusual hardship if the immigrant had to leave the United States. This form of relief is called cancellation of removal for certain nonlawful permanent residents.
The final element stated above is frequently the most challenging – proving “exceptional and extremely unusual hardship” to a qualifying relative. The words “exceptional and extremely unusual” mean that the applicant must show that the hardship their qualifying relative would suffer if they were deported is substantially beyond what is typically experienced by qualifying relatives of those who have had to leave the country. However, while the standard is a high one, it is certainly reachable. What facts are relevant and how to prove them is best determined by an attorney who is skilled and knowledgeable in this area.
In determining hardship, the Immigration Judge may consider how long a wait it would be for a family petition to become current. He or she may also consider that leaving the United States to consular process would render one ineligible to return for at least ten years.
It is important to understand that not everybody is eligible for Cancellation. Those who entered the U.S. as crewman or on “J” visas are not eligible. Conviction of various crimes, including crimes of moral turpitude, drug-related convictions, aggravated felonies, will render an alien ineligible for cancellation.
While lawful entry into the U.S. is not necessary for this relief, the manner of entry does become an issue if one has either been previously deported or allowed to leave under voluntary departure. Both events “break the chain” of physical presence in the United States. In addition, one who has either been out of the United States for 90 days at one time, or for 180 in the aggregate, has also broken that chain of physical presence.
Finally, an Immigration Judge has discretion to grant or deny applications for cancellation. They may consider many factors, including: length of residence in the U.S., family and community ties in the U.S., employment history, timely filing and payment of required income taxes, participations in clubs and religious organizations, criminal convictions that did not disqualify one from applying and other matters.
Reading the paper this last week was a disappointing experience for those who hoped that Labor Day would bring good news from the White House but, at times like now, when it looks bleak, flickers of hope do shine through. Family petitions, employment petitions and asylum as well as cancellation of removal are still very much out there. Don’t give up hope. Talk to an experienced and knowledgeable immigration attorney about your situation. The future may be brighter than you think.