Immigration Frequently Asked Questions
How to use this FAQ?
Who can file a petition to be classified as an athlete of extraordinary ability?
What is the processing times for a petition for an athlete of extraordinary ability?
Can a TN be converted to Permanent Resident “Green Card” Status?
Who can a R-1 work for?
What is Temporary Protected Status?
Do I qualify to apply for TPS?
How can I obtain legal permanent residence (a green card)?
How soon before my conditional resident status expires may I apply to remove the condition?
What is NACARA?
Unlawful Status v. Unlawful Presence
Do the three year and ten year bars apply to persons who are in unlawful status?
Am I eligible for Deferred Action for Childhood Arrivals?
Am I eligible for the State side 601a provisional waiver?
What are some of the common forms of relief from removal/deportation proceedings?
Am I eligible for an immigration bond in removal proceedings?
How is the bond hearing conducted?
What are the general requirements for Cancellation of Removal for a Legal Permanent Resident (green card holder)?
What are the general requirements for Cancellation of Removal for Non-Legal Permanent Resident?
Who is eligible to file under the Violence Against Women Act?
What are the general requirements for Cancellation of Removal for Battered Spouse or Battered Child (Violence Against Women Act – VAWA)?
How to use this FAQ?
This FAQ is a series of questions and answers covering various topics in Immigration and Nationality Law. This FAQ should not be used as a substitute for advice from a knowledgable immigration attorney.
Who can file a petition to be classified as an athlete of extraordinary ability?
203(b)(1)(A) and Regulation 8 CFR Section 204.5(h): (c) Filing petition…. “An alien, or any person in the alien's behalf, may file a petition for classification under section 203(b)(1)(A) or 203(b)(4) of the Act (as it relates to special immigrants under section 101(a)(27)(C) of the Act).”
What is the processing times for a petition for an athlete of extraordinary ability?
Generally speaking the Service processes these petitions in approximately seven to twelve months.
Can a TN be converted to Permanent Resident Status?
The short answer is yes but with caution. Yes it is possible to go directly from a TN to a permanent resident. However, the problem is not inability to successfully petition for permanent residence instead the issue is, whether your permanent resident application will pose a problem when you need to renew your TN status in the interim. The answer can also be no because it depends on your individual circumstance. Reason being, in order to go from a non-immigrant status to an immigrant status, in most cases presents the issue of the dual intent doctrine. As of now, the doctrine is contained in the regulations for L-1s and H-1s, however, it has not been specifically given to TNs.
Consider this statement from Immigration Regulations regarding the issue of dual intent in this context:
“The Service has, traditionally, considered applying for adjustment of status as relevant evidence in determining whether an alien has abandoned the requisite nonimmigrant intent. Section 214(b) of the Act does not, however, require the Service to hold this position as an absolute rule. So long as the alien clearly intends to comply with the requirements of his or her nonimmigrant status, the fact that the alien would like to become a permanent resident, if the law permits this, does not bar the alien's continued holding of a nonimmigrant status.”
Although the conversion is possible and has been done, this situation poses several elements that must be addressed in a strategic manner.
Who can a R-1 work for?
Source: 8 C.F.R §§214(2)(r)(1)(v), (2):
The R visa is available to ministers and persons who meet the criteria to be classified as religious workers. An individual on a R-1 visa may only work in the United States in the capacity of a minister or religious worker. However, an R-1 may work for more than one employer as long as each qualifying employer submits a petition along with all required documentation.
What is Temporary Protected Status?
Temporary Protected Status establishes a safe haven in the United States for nationals for certain countries (if person is stateless then the last foreign state habitually resided). The countries are determined by the Attorney General of the United States.
Do I qualify to apply for TPS?
Eligibility for TPS requires proof of the following:
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Identity and Nationality;
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Presence in the United States;
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Must be otherwise admissible;
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Must not be firmly resettled in a third country
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Must not be ineligible because of a conviction of a felony or two or more misdemeanors or because applicant is a person described in INA 241(b)(3)(B);
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Must register for TPS within period provided by the Attorney General.
How can I obtain legal permanent residence (a green card)?
There are several ways to obtain legal permanent residence. Below is a list of the most common paths to legal permanent residency.
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Family sponsored immigrants
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Employment based immigrants
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Diversity Immigrants
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Asylum and Refugees
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Victims of Domestic Violence
For more information about how you can obtain legal permanent residence (green card), please contact our office at (713)239-4429.
How soon before my conditional resident status expires may I apply to remove the condition?
90 days prior to the second anniversary of the grant of conditional resident status.
What is NACARA?
This is the Nicaraguan and Cuban Adjustment Act. Under this act, persons from Nicaragua and Cuba who were physically present in the United States since December 1, 1995 may adjust their status in the US if their application was submitted before April 1, 2000.
Unlawful Status v. Unlawful Presence
Unlawful status results when an individual violates the terms of the status given to them by the US Department of Homeland Security. Unlawful presence refers to time in the United States beyond any authorized stay or when an individual is present in the United States without being admitted or paroled. Example of Unlawful status: An international student on an F-1 nonimmigrant visa who engages in unauthorized employment is said to be in unlawful status because he/she violated the terms of their F-1 visa.
Do the three year and ten year bars apply to persons who are in unlawful status?
NO. The three year and ten year bars only apply to persons who are unlawfully present.
Am I eligible for Deferred Action for Childhood Arrivals?
1. You were under the age of 31 as of June 15, 2012;
2. You came to the US before reaching your 16th birthday;
3. You continuously resided in the US since June 15, 2007, up to the present time;
4. You were physically present in the US on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
5. You Entered Without Inspection before June 15, 2012, or your LPR status expired as of June 15, 2012;
6.You are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. You have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety
Am I eligible for the State side 601a provisional waiver?
First it should be noted that this waiver only addresses one ground of inadmissibility – unlawful presence. If you think you are facing other grounds of inadmissibility, please consult with a qualified immigration attorney to have your situation thoroughly assessed before you file anything seeking immigration relief.
1. You are physically present in the United States
2. You are at least 17yrs at time of filing
3. Extreme hardship to a Qualifying Relative – US Citizen spouse or parent or should grant your waiver as a matter of discretion
4. You are the beneficiary of an approved I-130 classifying you as an immediate relative of USC
5. You have an immigrant visa case pending with Department of State related to the approved I-130 that classified you as an immediate relative and you already paid the visa fee
6. You believe or you will ONLY be inadmissible for unlawful presence
7. Not in removal proceedings or they were administratively closed
8. Not subject to a final order of removal
9. No appointment letter from NVC for interview with Consulate scheduled before Jan 3, 2013
What are some of the various forms of relief from removal/deportation proceedings?
Some common forms of relief from removal proceedings are:
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Voluntary Departure
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Cancellation of Removal for Legal Permanent Residents
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Cancellation of Removal for Non- Legal Permanent Residents
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Asylum
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Adjustment of Status
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Withholding of Removal
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Deferred Action
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Waivers of removability or inadmissibility
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Temporary Protected Status
An individual seeking relief from removal proceedings may be eligible for several forms of relief. The following forms of relief is not an exhaustive list and the decision to choose any form of relief should be carefully discussed with a qualified immigration attorney because there are advantages and disadvantages to each form of relief and these must weigh in the analysis of your individual situation to determine the appropriate relief for you. As a knowledgeable and dedicated attorney, I am ready to assist you in preparing the strongest case possible to receive approval for the immigration relief sought. Contact my office today at (713)239-4429 or online to schedule your comprehensive and customized consultation.
Am I eligible for an immigration bond in removal proceedings?
Under federal law, a bond is available to all persons except those who are subject to mandatory detention [INA §236(c)] such as criminal, terrorists or “arriving aliens”. The bond is payable by money order or cashier’s check.
How is the bond hearing conducted?
“Consideration by the Immigration Judge of an application or request of a respondent regarding custody or bond under this section shall be separate and apart from, and shall form no part of, any deportation or removal hearing or proceeding. The determination of the Immigration Judge as to custody status or bond may be based upon any information that is available to the Immigration Judge or that is presented to him or her by the alien or the Service.” 8 C.F.R. §1003.19(d)
What are the general requirements for Cancellation of Removal for a Legal Permanent Resident (green card holder)?
Source: 240(A)(1)
(a) Cancellation of Removal for Certain Permanent Residents.-The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien-
(1) Has been an alien lawfully admitted for permanent residence for not less than 5 years,
(2) Has resided in the United States continuously for 7 years after having been admitted in any status, and
(3) Has not been convicted of any aggravated felony.
US Immigration laws addressing removal/deportation involve a delicate and complicated combination of requirements to prove eligibility for the benefit sought.
What are the general requirements for Cancellation of Removal for Non-Legal Permanent Resident?
(1) IN GENERAL.-The Attorney General 2/ may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien-
(A) Has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) Has been a person of good moral character during such period;
(C) Has not been convicted of an offense under section 212(a)(2), 237(a)(2) , or 237(a)(3) , subject to paragraph (5) 2a/ 5/ ; and
(D) Establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
US Immigration laws addressing removal/deportation involve a delicate and complicated combination of requirements to prove eligibility for the benefit sought.
Who is eligible to file under the Violence Against Women Act?
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Spouse: You may file for yourself if you are, or were, the abused spouse of a U.S. citizen or permanent resident. You may also include on your petition your unmarried children who are under 21 if they have not filed for themselves.
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Parent: You may file for yourself if you are the parent of a child who has been abused by your U.S. citizen or permanent resident spouse. You may include on your petition your children, including those who have not been abused, if they have not filed for themselves. You may also file if you are the parent of a U.S. citizen, and you have been abused by your U.S. citizen son or daughter.
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Child: You may file for yourself if you are an abused child under 21, unmarried and have been abused by your U.S. citizen or permanent resident parent. Your children may also be included on your petition. You may file for yourself as a child after age 21 but before age 25 if you can demonstrate that the abuse was the main reason for the delay in filing.
What are the general requirements for Cancellation of Removal for Battered Spouse or Battered Child (Violence Against Women Act – VAWA)?
SPECIAL RULE FOR BATTERED SPOUSE OR CHILD-
Source: INA 240(A)
(A) AUTHORITY- The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien demonstrates that-
(i) (I) The alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen (or is the parent of a child of a United States citizen and the child has been battered or subjected to extreme cruelty by such citizen parent);
(II) The alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a lawful permanent resident (or is the parent of a child of an alien who is or was a lawful permanent resident and the child has been battered or subjected to extreme cruelty by such permanent resident parent); or
(III) The alien has been battered or subjected to extreme cruelty by a United States citizen or lawful permanent resident whom the alien intended to marry, but whose marriage is not legitimate because of that United States citizen’s or lawful permanent resident's bigamy;
(ii) The alien has been physically present in the United States for a continuous period of not less than 3 years immediately preceding the date of such application, and the issuance of a charging document for removal proceedings shall not toll the 3-year period of continuous physical presence in the United States;
(iii) The alien has been a person of good moral character during such period, subject to the provisions of subparagraph (C);
(iv) The alien is not inadmissible under paragraph (2) or (3) of section 212(a) , is not deportable under paragraphs (1)(G) or (2) through (4) of section 237(a) , 5/ , subject to paragraph (5) and has not been convicted of an aggravated felony; and
(v) The removal would result in extreme hardship to the alien, the alien's child, or the alien's parent.