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Immigration

Green Cards for Family Members in the U.S.: The Adjustment of Status Process

Adjustment of Status is an application process, where an immigrant already in the U.S. applies to change one immigration status – such as a temporary visa holder – to the status of permanent or conditional legal resident (i.e., to become a green card holder), all without leaving the United States.

In a family-based case, the immigrant must be sponsored either by a U.S. citizen or legal permanent resident. The adjustment of status procedure includes an interview at an office of U.S. Citizenship and Immigration Services (USCIS). Once the case is approved, USCIS sends the immigrant a permanent residency card (also known as a “green card”), which is proof of the immigrant’s permanent residency status.

Who is eligible to adjust status? Most often, an adjustment of status case involves an adult U.S. citizen who is petitioning for their spouse, parent, or minor child. Less frequently, the petitioner may be a legal permanent resident (i.e., a green card holder) who is applying for their spouse or minor child. There are more restrictions involved when the petitioner is a legal permanent resident as opposed to a U.S. citizen. Either way, the immigrant must have entered the U.S. legally, on some type of visa (in other words, immigrants who entered the U.S. illegally are usually not eligible to adjust status, except under certain circumstances).

The most common adjustment of status cases involves an immigrant, who entered the U.S. legally, and who then marries a U.S. citizen. However, merely proving that the couple is legally married is not enough to get an adjustment of status application approved. The couple must prove that their marriage is genuine, meaning that they entered into the marriage intending to build a life together (and not just for the purpose of getting a green card for the immigrant). The couple has the burden of proving their marriage is genuine, by submitting a wide variety of documents which prove that they are living together, and that their marriage is genuine. Note: there is a lot of fraud in this area (where a couple are legally married, but did so only to get a green card for the immigrant). Thus, USCIS is very suspicious of these marriage cases, and so the applicant couple has a high bar to prove that their marriage is genuine.

Applying for permanent resident status is a detailed, arduous process. We have handled many such matters, and have earned a sound reputation for excellence by leading clients through the nuances of the package of forms, and the types of documents to gather to prove that their marriage is genuine.

Fiancé Visas and Immigrant Visas for a Spouse Living Abroad

A U.S. citizen may apply for a K-1 fiancé visa for their foreign fiancé who lives outside of the U.S. The fiancé must attend an interview at the U.S. Consulate abroad (usually in the fiancé’s home country). If the fiancé visa petition is approved, then the fiancé is issued a K-1 visa, which is valid for six months, and so the fiancé must enter the U.S. within that six month period. Once the fiancé enters the U.S., the fiancé is granted three months, before the couple must make a choice: Either they marry, and then apply for adjustment of status (as described above), or the fiancé is expected to return home. Note: there is a lot of fraud in this area, thus, the U.S. Consulate is very suspicious of these fiancé relationships, and so the U.S. citizen petitioner has a high bar to prove that their fiancé relationship is genuine, and that they intend to marry and build a life together in the U.S.

Immigrant Visas For Other Family Members Living Abroad

An adult U.S. citizen may apply for an immigrant visa for their parent or child living abroad. In cases where the immigrant is their spouse, the petitioner must submit a wide variety of documents that prove that their marriage is genuine, and that they intend to build a life together in the U.S. In all cases, the U.S. citizen parent must prove the relationship to the immigrant, by submitting birth and sometimes marriage certificates. In cases where a U.S. citizen father is applying for his child, and the father was not married to the child’s mother, the U.S. Consulate will often require the father and child to take a DNA test to prove the biological relationship. But that is not enough – the father must also prove that he held himself out as a father to that child, meaning that they have a true father/child relationship, and that he supports that child both financially and emotionally.

Naturalization & Citizenship

There are two types of naturalization and citizenship cases. The most common type is where an adult immigrant who has been a legal permanent resident for at least five years (or three years if the immigrant is married to a U.S. citizen), and that immigrant applies to become a naturalized U.S. citizen. Often times, people think this is an easy process, and file the application on their own, without an attorney. But be careful! If the immigrant has any criminal history, or if the immigrant registered to vote or actually voted in a U.S. election, then the immigrant will be alerting USCIS of their past, and may be unintentionally placing themselves in deportation proceedings. Also, the immigrant may have other issues (unpaid taxes, unpaid child support, not registering for Selective Service), which could prevent approval of their naturalization certificate, and so the immigrant will waste their money if they apply. For these reasons, it is always best to consult with an immigration attorney before applying to become a naturalized citizen.

Another type of citizenship case is where the person derived citizenship through their parent(s), and wishes to obtain a citizenship certificate and passport to prove their status. Sometimes, immigrants wind up in deportation proceedings and do not even realize that they already became a U.S. citizen through their parent(s). So if there is any question, it is best to consult with an immigration attorney.

Asylum Cases

In an asylum case, the immigrant has already entered the U.S., and is afraid to return home, because the immigrant has a well-founded fear of persecution in their home country, because of their race, religion, nationality, political participation, or membership in a particular social group. In that case, the immigrant may apply for asylum status, which would allow them to remain lawfully in the U.S. indefinitely, and would put them on a path towards legal residency status, and ultimately citizenship. It is VERY important that the immigrant apply for asylum within ONE YEAR of entering the U.S., otherwise, they may be ineligible for asylum.

There are two paths for gaining asylum: affirmative and defensive. A defensive asylum case is where the immigrant has already come to the attention of the U.S. immigration authorities, and their removal case may already be pending in immigration court. These persons file an asylum application in immigration court, and must prove their case to an immigration court judge to prevent being deported. An affirmative asylum case is where the immigrant has not yet come to the attention of the government, and so when they file their asylum case, they must first attend an interview at the asylum office, and prove their case before an immigration officer. The officer can approve their case, or, if not, then the officer will refer their case to immigration court, and the immigrant will have a second chance at proving their case, before an immigration court judge.

Immigration Court Cases & Deportation Defense

Once an immigrant has come to the attention of immigration authorities, they are referred to immigration court, and the removal process begins, which could ultimately end up with the immigrant being deported. However, there are multiple ways to defend oneself, to fight the deportation process, and thereby obtain a court order granting them legal status and the right to remain in the U.S. indefinitely. Some of the forms of relief that an immigrant might be eligible for in immigration court include: cancellation or removal, withholding of removal, relief under the Convention Against Torture (CAT), asylum, adjustment of status, waivers for criminal convictions, and others. Each form of relief has its own set of requirements, so it is best to consult with an immigration attorney to determine which one is applicable to their case. Note: Immigration court cases are very complex, and an immigrant should not attempt to represent themselves before an immigration court judge.

Detention and Bond Hearings

When a person with illegal status is detained by Immigration and Customs Enforcement (ICE), that person may be eligible for an immigration bond that will allow them to be released from detention while their immigration court case proceeds. To obtain a bond, the immigrant must prove that they are not a flight risk (that they will indeed return for their next immigration court hearing), and that they have family and community ties. Immigrants who have a criminal issue, or who have been convicted of a crime, will have to prove that they are not a danger to the community, and will need to submit character evidence to rebut the negative factors that the crime has created in their case. If a bond is not granted, then the immigrant will remain detained behind bars, until their immigration court case is completed, which may be many months. It is best to hire an immigration attorney who has experience in the local immigration court, in order to obtain a bond.

Criminal Charges and Immigration Consequences

Immigrants who have been granted permanent legal residence status (also known as green card holders) are often surprised to find out that if they are convicted of a crime, they could be deported. So when a green card holder is arrested and charged with a crime, it is VERY IMPORTANT that they consult with an immigration attorney BEFORE pleading guilty in a criminal court. Likewise, immigrants who have no legal status that plead guilty to a criminal charge, may find themselves in deportation proceedings. Or, they may later be surprised to find that their past guilty plea will prevent them from obtaining legal permanent residency status (or from getting their green card). Unfortunately, criminal defense attorneys usually do not understand the consequences of a guilty plea or criminal conviction on an immigrant’s status, and they sometimes fail to properly advise their clients during the criminal court proceedings. So it is very important that a non-citizen consult with an immigration attorney BEFORE pleading guilty in a criminal court, even though they have been advised by their criminal defense attorney to do so.

Converting Conditional Residency to Permanent Residency: The I-751 Application

Immigrants who obtained your legal residency status through marriage, and who received a two-year green card, are actually conditional legal residents. In the three-month window before their green card expires, they must take another step to convert their conditional legal residency status to permanent legal residency status. Time is of the essence with these cases. They must file their I-751 Petition to Remove Conditions on Residence no earlier than 21 months, and no later than 24 months after they were initially granted legal residency status. That three month window is a hard and fast period of time. An application filed too early will be rejected, and an application filed too late will most likely be rejected or denied. If the form is not filed, the immigrant spouse will fall out of status.

Typically, both spouses must sign the I-751 Petition together, and submit a variety of documents to prove that they are still living together as a married couple. If the couple is no longer living together, or are divorced, or if the U.S. citizen spouse refuses to sign the application, it makes the immigration case more complicated, and the immigrant spouse should consult with an immigration attorney on how to obtain a waiver of the joint filing requirement.

Provisional Waivers for Unlawful Presence

An immigrant spouse who entered the U.S. illegally is ineligible to apply for an adjustment of status (i.e., is ineligible apply their green card), while inside the U.S. In that situation, the U.S. citizen spouse must apply for an immigrant visa for their immigrant spouse, who must eventually leave the U.S. and attend an interview at the U.S. Consulate in their home country. But if the immigrant spouse has lived in the U.S. in unlawful presence status for more than 6 months, or more than 1 year, then when that person leaves the U.S., they are barred from returning to the U.S. for period of 3 years (if they accumulated 6-12 months of unlawful presence), or 10 years (if they accumulated more than 12 months of unlawful presence).

However, there is a waiver available for unlawful presence. The couple can apply for a provisional waiver while the immigrant spouse is still in the U.S., and wait until they receive a decision on the provisional waiver before the immigrant spouse leaves the U.S. for their interview at the U.S. consulate abroad. The decision is called a provisional waiver, because the final waiver can only be granted by the U.S. consulate abroad. But persons with an approved provisional waiver of unlawful presence are usually granted the actual waiver when they attend their consular interview abroad. Provisional waivers require a showing that the U.S. citizen spouse will suffer serious hardship if the immigrant spouse is barred from returning to the U.S. For that reason, provisional waivers are complicated, and applicants are advised to hire a competent immigration attorney to handle their case.

Inadmissibility Waivers

A Waiver of Inadmissibility, also known as a Waiver of Grounds of Inadmissibility, is a waiver for entry into the U.S. granted by USCIS to immigrants who they have determined to be legally inadmissible either as non-immigrants or immigrants. Those Individuals who are deemed to be inadmissible can apply for an Application for Waiver of Inadmissibility, and if approved, that person will receive permission to enter the country. There are various grounds for inadmissibility, such as health, security, and economic, but the most common ground is because the immigrant has some criminal convictions in their past, and thus require a showing that the U.S. citizen or legal permanent resident family member will suffer serious hardship if the immigrant is barred from entering the U.S.

Deferred Action for Childhood Arrivals – DACA Immigration Relief

Deferred Action for Childhood Arrivals (DACA) is a type of immigration relief available to young people who came to the U.S. as children, and who meet certain requirements. USCIS began accepting DACA applications in August 2012, and it is still available to those who are in removal proceedings, as well as those who have never been in removal proceedings. It provides a two-year temporary relief from removal, and it also provides the applicant with a work authorization card, so the applicant can then obtain a Social Security Number and a driver’s license, however, it does not provide a pathway to citizenship. It can be renewed at the end of the two-year period. Although the current administration has attempted to end DACA, recent court rulings have required that the program remain in place, and the government must accept new applications.

Temporary Protected Status

Temporary Protected Status (TPS) is granted by the Secretary for the Department of Homeland Security (DHS), for up to two years, to certain foreign born individuals who are already present in the U.S., who are citizens of certain countries, and who are unable to return home safely due to war, natural disaster, or other extraordinary circumstances that prevent their safe return. A foreign national who is granted TPS receives a registration document and a work authorization card, which enables them to obtain a Social Security Number and a driver’s license. The Secretary of DHS can extend TPS status if the country conditions have not changed.

Bankruptcy

Chapter 7 Bankruptcy

Chapter 7 is often called the “fresh start bankruptcy” or “liquidation bankruptcy’’ because most of your unsecured debt will discharged (or wiped out) at the end of your bankruptcy case. Unsecured debt generally includes credit card debt, medical bills, and personal loan, but it excludes any debt that has an asset attached to it (like a mortgage or car loan).

Most Chapter 7 cases are “no asset cases”, meaning that the debtor will not have to give up any possessions. Most Chapter 7 debtors are able to retain their basic assets needed for day-to-day living, such as their car, house, computers, and other equipment. But not all debts are discharged in a Chapter 7 case. Debts that are not discharged in a Chapter 7 case include taxes, alimony, child support, student loans, and parking tickets.

Chapter 7 bankruptcy is the most simple and most common type of bankruptcy, and is usually completed in about four months. But not everyone can qualify for a Chapter 7 bankruptcy. In order to qualify for a Chapter 7 bankruptcy, you must pass a “means test”, which looks at your complete financial picture, including your income, debt, living expense, and assets. Those who pass the “means test” may file a Chapter 7 petition. Those who do not pass the “means test” will then have to consider filing a Chapter 13 bankruptcy and enter into a repayment plan.

Chapter 13 Bankruptcy

Chapter 13 Bankruptcy is where the debtor enters into a repayment plan to catch up on payments for certain property that they want to try to keep (such as their house or car), and pay a reduced portion of their unsecured debt (such as their credit cards, medical bills, and personal loans). People who enter into the Chapter 13 bankruptcy process usually do so because they did not pass the Chapter 7 “means test”, or because they want to retain their house or car. Usually, people who are candidates for a Chapter 13 have fallen behind on their debts due to an illness or job loss, but are now working again, and are able to pay their usual monthly living expenses plus an additional amount in order to catch up on their debts. Debtors (through their attorney) submit a repayment plan to the court for approval. Once the plan is approved, the debtor makes monthly payments to a Chapter 13 Trustee whom the court assigned to their case. The Trustee accepts the debtor’s monthly payments, and, in turn, uses that money to pay the debtor’s creditors. The repayment plan period is generally 3 to 5 years. At the end of the repayment plan period, all remaining unsecured debts will be discharged (or wiped out).

One advantage for filing a Chapter 13 is that all creditors must stop any collection efforts during the proceeding, such as foreclosure on the debtor’s house, or repossession of the debtor’s car. And creditors must stop accruing interest and penalties on the debts.

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