Immigration

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Asylum

In the affirmative asylum process, individuals who are physically present in the United States, regardless of how they got here and regardless of their current immigration status, may apply for asylum. They do so by submitting an application to the USCIS. Asylum-seekers must apply for asylum within one year from the date of last arrival in the United States, unless they can show changed circumstances that materially affect their eligibility or extraordinary circumstances relating to the delay in filing, and that they filed within a reasonable amount of time given those circumstances. They file an asylum application (Form I-589) by sending it to a USCIS Service Center, and are interviewed by Asylum Officers.

Affirmative asylum applicants are free to live in the U.S. pending the completion of their asylum processing with the USCIS and, if found ineligible by the USCIS, then with an Immigration Judge. Asylum applicants referred to an Immigration Judge for such processing are usually not detained.

U.S. "Defensive" Asylum Processing with EOIR

Immigration Judges hear asylum applications only in the context of "defensive" asylum proceedings. Applicants request asylum as a defense against removal from the United States. Immigration Judges hear such cases in adversarial proceedings. If the applicant is not found eligible for asylum, the IJ determines whether the applicant is eligible for any other forms of relief from removal and, if not, will order the individual removed from the United States.

Citizenship

Naturalization is defined as the process by which eligible U.S. Permanent Residents may apply for and be granted U.S. citizenship.

Below are the seven general requirements for naturalization:

  (1) An applicant for naturalization must be at least 18 years old;
(2) An applicant for naturalization must be a Lawful Permanent Resident for at least five years. A notable exception to this general rule may include a person who has been married to a U.S. citizen for at least three years;
(3) After having been granted Lawful Permanent Residence, an applicant for naturalization must have resided continuously in the United States for at least five years;
(4) Most applicants must have been physically present in the United States for at least 30 months of the five years of required continuous residence;
(5) At the time of filing an application for naturalization, an applicant must have lived for at least three months in the USCIS district where the filing took place;
(6) An applicant must be a person of good moral character, attached to the principles of the Constitution of the United States, and favorably disposed toward the good order and happiness of the United States; and
(7) A naturalization applicant must demonstrate an understanding of the English language, including an ability to read, write, and speak words in ordinary usage in the English language. An applicant must also demonstrate a knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States.


Consular Processing

Immigrant visa processing at a U.S. Consulate abroad is one of the two methods of acquiring lawful permanent residence by an alien. The alternative method available to aliens already present in the United States is called adjustment of status ("AOS").

According to 22 CFR §42.61(a), an alien applying for an immigrant visa shall make application at the consular post that has jurisdiction over his or her place of residence.

In certain situations, the alien may be permitted to process with another consular office. However, such situations usually involve hardship. 9 FAM §42.61 N2.2-3 provides the following guidance regarding hardship:

 
(1) Hardship would not usually be considered to exist when an alien does not wish to return to the place of last foreign residence only because of inconvenience or expense.
(2) A brief, temporary absence from work would not generally be considered a hardship.
(3) Inability of an alien to travel long distances because of physical infirmity or advanced age would be considered to entail hardship.
(4) The presence of war, widespread civil disturbance, revolution, or other similar phenomena in an alien's country of last foreign residence would be evidence that hardship could result if the alien were required to return to that country.

The timing of an immigrant visa depends on the availability of a visa number. Although immediate relatives and certain special immigrants are not subject to numerical limits, all other visa applicants are so limited.

As a result of these numerical limitations, visa backlogs exist in most preference categories. The priority dates of cases currently being processed in each category appears in the DOS Visa Bulletin.

Available visa numbers are allocated within each preference based on each alien's priority date. In family-based cases and employment-based preference categories where no individual labor certification needs to be filed, the alien's priority date will be the date that the approved preference petition was filed and received by USCIS. Where an individual labor certification must first be filed, its date of filing and acceptance by the Department of Labor is considered the alien's priority date. Once a visa application has been properly completed and executed before a consular officer, a visa must be either issued or refused. Where an alien is ineligible under a ground of inadmissibility for which a waiver is available, he or she will need to apply for an immigrant waiver before an immigrant visa can be issued. Immigrant waivers are different from nonimmigrant waivers granted under INA §212(d)(3).

 

Requirements for Consular Processing:
Eligibility Criteria

To be eligible to receive an immigrant visa through consular processing, you must prove that:

  (1) You satisfy all the admissibility criteria to enter the U.S. as an immigrant
(2) You have an approved immigration petition
(3) You plan to engage in the activities that are consistent with your immigrant visa category
(4) Your immigration petition's priority date is current


The following are considerations when an individual may wish to avoid consular processing:

  - immigration history of having changed status from B-2 to F-1 or H
- employment-based labor certification cases where the beneficiary has insufficient English language abilities for the job. Recent targets include nationals from China, Turkey, the Gulf states, and Iran.
- must be prepared to discuss job and qualifications. Expect "pop quizzes" about the job, especially for computer industry-based jobs.
- 3 and 10 year bars: if individual has been unlawfully present in the U.S. for over 180 days, may be subject to the 3 or 10 year bar. If unsure, should get an advisory opinion in advance.
- multinational executives if prior foreign employer and U.S. employer no longer have same qualifying affiliation or have ceased doing business.
- applicants relying on "green card portability" of INA section 204(j) to change employers before completion of PR process.

 

 


Deportation and Waivers

Immigration law provides certain types of relief from removal in the Immigration Court, the BIA and various Federal Courts. Among possible avenues of relief are:

  (1) cancellation of removal for permanent residents;
(2) cancellation of removal for non-permanent residents;
(3) adjustment of status to permanent residence;
(4) asylum, withholding of removal and UN Convention Against Torture; and
(5) waivers of inadmissibility and deportability.
 


Eligibility for waivers of removability depends upon the alien's ability to establish extreme hardship to his or her immediate family members if he were to be removed from the U.S. For instance, a person who has committed fraud or material misrepresentation may apply for a waiver under §212(i) if the failure to admit him to the U.S. would result in "extreme hardship" to his lawful permanent resident (LPR) or U.S. citizen (USC) spouse or parents. Similarly, a person who is inadmissible on certain criminal grounds may be eligible for a waiver under §212(h) if the failure to admit him to the U.S. would result in "extreme hardship" to his LPR or USC spouse, parents, or children.

In representation of aliens in deportation proceedings, we pursue the following major stages:

 

• If an alien is detained by the USCIS, we seek his release from detention during removal proceedings

• We use our experience to persuade the USCIS to exercise favorable prosecutorial discretion;

• We deny deportability or inadmissibility based on denial of one or more of the following legal doctrines and theories: alienage, conviction, admission of offense, reason to believe that individual is a drug trafficker, aggravated felony, crime involving moral turpitude, controlled substance offense, crime of domestic violence; and

• During removal proceedings, we examine the facts of the case, and possibly apply for one or some of the following types of relief from removal: termination of proceedings to permit naturalization hearing, application for 212(c) waiver, application for cancellation of removal, application for adjustment of status, application for 212(h) waiver of inadmissibility, application for 209(c) waiver of inadmissibility, application for asylum, withholding of removal, relief under Torture Convention.

Moreover, we pursue post-conviction relief tactics using statutory and case law. We cooperate with experienced criminal lawyers to vacate convictions and render an alien admissible and non-deportable.