By Robert L. Reeves & Nancy E. Miller
Will 2010 be the year in which you look your immigration problem in the eye and take the necessary steps to solve it? Is help available to you today that was not available a few years ago? Will you seek the expert help you need to determine whether you are eligible today to join those who have legalized their status and are no longer afraid of a knock on the door?
Maybe you came into the U.S. without documents and have stayed and built a life here. Maybe you came with a visa that has long since expired, but you married, now have children, and a good job at which you work hard. Maybe your US citizen spouse filed a petition for you, but died before you got your green card. Maybe you lied in order to obtain an immigration benefit and now you are here, but your family is back home. Maybe you would like to naturalize, but are afraid to file because of a long ago criminal conviction.
These and other problems weigh heavily over the years. The non-citizen knows he should do something to deal with the problem, but does not know what to do. He, in fact, does not know if there is anything that can be done. Moreover, he is afraid that, if he takes any steps to solve the problem, he might make matters worse.
These concerns are valid. That is why someone with a serious immigration problem (and all immigration problems are serious) should consult a knowledgeable and experienced immigration lawyer. An immigration law expert will be able to tell the non-citizen what, if any, help is available for them. And help is available for many immigration problems. In fact, thanks to certain changes and proposed changes in law, more help might be available than has been in many years.
In October of 2009, Congress passed and the President signed the landmark bill that ended the automatic revocation of a visa petition when the petitioner dies. Under this new law, surviving family members who were in the US when the petitioner or the principal beneficiary died and continue to reside in the US may adjust their status to permanent resident when their priority date becomes current. The law applies to beneficiaries of pending or approved petitions from US citizen or lawful permanent resident petitioners, from employment-based immigrant visa petitions, from refugee or asylum applications, and those attempting to immigrate through a “T” or “U” visa.
In December of 2009, Congressman Gutierrez of Illinois introduced the Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009. The bill ends and amends some enforcement measures while establishing a long-term path to citizenship for many immigrants who are not in legal status. Members of the Senate have expressed an intent to introduce their version of a Comprehensive Immigration Reform bill in 2010. That could result in long-awaited relief for immigrants who are not now in status.
Immigrants need not necessarily wait for a new law. They can take heart in the fact that some forms of relief are already available. A person who gave a false marital status (or other non-true information) in order to obtain a green card may be eligible for a waiver of that misrepresentation. If she has a parent, spouse, son or daughter who is a U.S. citizen or lawful permanent resident and she can show that she has more favorable than unfavorable aspects to her case, she may be able to keep her green card. This is true even if the misrepresentation involved a fraudulent marriage – as long as the family relationship relied on for the waiver is not a result of the fraudulent marriage. Upon receipt of the waiver, the non-citizen may even be able to naturalize.
A person who came into the United States with a false name in his passport may be eligible for a waiver of that misrepresentation if he has a parent or spouse who is a U.S. citizen or lawful permanent resident who will suffer extreme hardship if the non-citizen is forced to return to the home country. Both Citizenship & Immigration Services and the Immigration Court take the words “extreme hardship” literally. To meet that standard, the non-citizen must show more than that the spouse or parent loves and would miss the immigrant. However, if the facts are present, it is possible to obtain the waiver if the evidence is properly and adequately presented.
Of course, if the person has never been granted a green card, the waiver will not solve all his problems. He will still need to be eligible to apply for lawful residence in order to legally live and work in the U.S. Various family relationships, employment, and business investments are just some of the ways to obtain legal status in the U.S. The knowledgeable immigration lawyer will explore all possible legitimate avenues to determine if the alien is eligible for a green card. He will also explore whether the non-citizen is eligible for long-term non-immigrant visas and any waivers that may be necessary and available in that connection.
A non-citizen who has been convicted of criminal offenses may still be able to obtain or keep a green card. In fact, criminal convictions may not be a bar to citizenship. There are waivers that are available to green card holders who have lived in the U.S. in lawful status for a certain number of years and who have not been convicted of what are called aggravated felonies. There are waivers that are available to those who may or may not have ever had a green card and who have a parent, spouse, son or daughter who are U.S. citizens or lawful permanent residents who would suffer extreme hardship if their relative had to leave the U.S. Waivers may be available even to those whose convictions are considered to be aggravated felonies. Not all convictions may be waived. If there is no waiver available, the non-citizen may be able to go back to the criminal court and seek post-conviction relief. Under certain circumstances, if she enters a plea to a different charge, or if the sentence is modified, a person may be able to apply for a waiver for which they were not previously eligible.
The descriptions of relief and waivers in this article are just a brief outline of what might be available and how it might be obtained. It is essential to know when to apply for relief, what relief to apply for and how to apply in order to afford the best possibility for success. It is also important to keep up with changes in the law. Beneficial changes can create relief where none existed before.
In 2009 we saw some very positive changes in immigration law. In 2010, hopefully, we will see even greater and more far reaching beneficial changes for immigrants. And some immigrants may not need to wait for changes. Existing law may afford them an avenue for relief that will help them keep their resolution to resolve their immigration problem in 2010!