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PROVISIONAL UNLAWFUL PRESENCE WAIVER

Prior to March 2013, aliens who entered the country unlawfully, had almost no venues to legalize their stay in the United States. Generally, individuals who remained in the United States unlawfully for more than 1 year, are subject to a ten-year bar, and to obtain permanent residence needed to apply for a waiver, however  to receive the benefit of the waiver, had to leave the United States and wait for the approval of the waiver outside of the country. Under the original waiver program, families had to remain separated for multiple years.

However, beginning in March 2013, those aliens could begin utilizing a new program, called an Unlawful Presence waiver, under which it is no longer necessary to leave the boundaries of the United States to be eligible for the waiver. Those individuals can submit all their evidence while they remain within the United States. Once their waiver is approved, then they have to only leave to attend their previously scheduled appointment at a US Consulate in their home country, and receive an immigrant visa.

Those who qualify are, aliens who

  1. Are the spouse of a United States citizen, or, are the child of a United States citizen parent, and
  2. Have an approved Form I-130, Petition for an Alien Relative
  3. Prove that if not granted admission to the United States, which will cause extreme hardship to your U.S. citizen spouse or parent.
  4. Not have been scheduled for an immigrant visa interview by the Department of State before January 3, 2013.
  5. Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e)

Those who do not qualify:

  1. Entered the United States unlawfully more than once,
  2. Had a previous order of removal, and a subsequent unlawful entry,
  3. Arrested and convicted of those crimes, for which there is no waiver available (e.g. aggravated felonies, drug offenses (related to possession/intent to sell, etc. related to cocaine, heroine, but not 30g or less of marijuana).

For a more detailed explanation of the program and for an evaluation of your case, feel free to call us for a consultation.

CANCELLATION OF REMOVAL

Cancellation of Removal is a defense available to aliens and permanent residence, only when placed in removal proceedings. It is a common misconception that a person can apply affirmatively (proactively) for this program. However, again, this program is a relief (defense) to removal and can only be used when there is a person has removal (deportation) proceedings.

What is this program exactly? It applies to both aliens and green card holders; however, the eligibility is different. The program is codified in 8 U.S. Code § 1229b – “Cancellation of removal; adjustment of status”

Subsection (a) explains the eligibility requirements for permanent residents; and subsection (b) for alien. And thus the forms used to apply are commonly referred to as EOIR-42(a) and EOIR-42(b).

For Permanent residents the requirements are:

  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.

For Aliens the requirements are:

(A) has been physically present in the United States for a continuous period of not less than 10 years

(B) has been a person of good moral character during such period;

(C) has not been convicted of certain offenses under section (Crimes of Moral Turpitude, Crimes related to Controlled Substances, aggravated felonies, firearm offenses, document fraud, and others);

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.

The big difference between in the eligibility requirements is that for permanent residents, there is no need to establish “exception and extremely unusual hardship” on a relative. Another difference is the continuous presence requirements – 7 years for LPRs and 10 years for aliens.

DEFERRED ACTION

DACA (DEFERRED ACTION FOR CHILDHOOD ARRIVALS)

The original Deferred Action for Childhood Arrivals (DACA) program, which was announced on June 15, 2012, is still available. Under this program, the Department of Homeland Security (DHS) cannot deport certain youth, who came to the United States as children. In addition, these applicants, once qualified, would be eligible for a work-permit for two years, with the opportunity to renew. Children who qualify may still submit applications both as first time-applicants, and also to renew their expiring grant of DACA. To qualify one must establish the following requirements:

  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the United States when you were 15 years old, or younger;
  3. Have lived in the United States at least from June 15, 2007, or earlier, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of making your request for DACA;
  5. had no lawful status on June 15, 2012;
  6. Are currently in school, have graduated from high school, have obtained a GED certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

On February 18, 2015, the Department of Homeland Security was supposed to start accepting applications for the expanded DACA program; however, a District Court judge temporarily enjoined the implementation the expanded Deferred Action for Childhood Arrivals (DACA). The Department of Justice announced that they will appeal that temporary injunction. We will continue to follow the news related to this program, and will update our site promptly.

 

DAPA(DEFERRED ACTION FOR PARENTS OF AMERICANS AND LPRS)

After much anticipation, on November 20, 2014, President Obama announced a deferred action program for immigrant parents, now otherwise called DAPA. Under this program, the Department of Homeland Security (DHS) is not deport certain immigrants, who are to be granted a very low enforcement priority, otherwise referred to as “deferred action.” In addition, once qualified under this program, those individual would also qualify for a work permit. Based on the preliminary guidelines, to qualify, those individuals had to meet the below criteria:

On November 20, 2014, had a US citizen, or lawful permanent resident, child; and • have continuously resided in the United States from January 1, 2010; and • Are not an enforcement priority for removal under the Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum (in other words fingerprint security checks will not reveal a conviction of a significant misdemeanor, three or more misdemeanors, a felony, or an order of removal issued prior to January 1, 2014). This program was supposed to be in its first stage of implementation toward the middle/end of May 2015; sadly, it has currently been placed on hold, due to a lawsuit filed in a Federal District Court, where the judge in the case issued a temporary injunction preventing the implementation. However, until the case is heard on the merits, or until all appeals have been exhausted, there is still a significant chance that the program will at some point get implemented. Many clients have asked me if prior orders of removal would affect ones ability to apply. Under the limited guidelines above, it seems that only applicants who had orders of removal issued prior to January 1, 2014, would be ineligible. However, it can be speculated that if the prior removal case is reopened and then either administratively closed, or terminated, then that in effect would dispose of the removal, and would thus take away the ineligibility. What will the process involve? 1. Request for the applicant’s fingerprints, if arrested in the past, prepare official dispositions of all arrests; 2. Payment of an application fee to DHS – most likely $465; 3. Proof of identity of the applicant – copy of passport (national ID), copy of birth certificate; 4. Proof of identity of applicant’s US citizen/permanent resident child – copy of birth certificate; orders of filiation (orders regarding the paternity of the father) from family court would serve as well; 5. Proof of continuous physical presence from January 1, 2010 until present – copies of anything issued on applicant’s name with address in USA and a date (bank/credit card statements; utility bills; leases; phone bills; tickets; money transfer receipts; deeds; tax records, etc.) 6. Tax returns do not appear to be a per se requirement- however may be used as proof of physical presence.

FAMILY PETITIONS

Some family members qualify for permanent residence due to their familial relationship either to a United States citizen, or a permanent resident. Their eligibility for permanent residence in the US depends on a few factors. The two most important factors in determining eligibility are whether the family member is an immediate relative, and whether they are in the United States or outside of the United States.

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NATURALIZATION

The two most common ways to naturalize are for individuals who have been permanent residents for five years or more; and for individuals who are married to a US citizen and who have been permanent residents for three years.

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APPLICATION TO RENEW PERMANENT RESIDENCE

VAWA APPLICATIONS (BATTERED SPOUSES) & U VISA

CANCELLATION OF REMOVAL

Cancellation of Removal is a defense available to aliens and permanent residence, only when placed in removal proceedings. It is a common misconception that a person can apply affirmatively (proactively) for this program. However, again, this program is a relief (defense) to removal and can only be used when there is a person has removal (deportation) proceedings.

What is this program exactly? It applies to both aliens and green card holders; however, the eligibility is different. The program is codified in 8 U.S. Code § 1229b – “Cancellation of removal; adjustment of status”

Subsection (a) explains the eligibility requirements for permanent residents; and subsection (b) for alien. And thus the forms used to apply are commonly referred to as EOIR-42(a) and EOIR-42(b).

For Permanent residents the requirements are:

  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.

For Aliens the requirements are:

(A) has been physically present in the United States for a continuous period of not less than 10 years

(B) has been a person of good moral character during such period;

(C) has not been convicted of certain offenses under section (Crimes of Moral Turpitude, Crimes related to Controlled Substances, aggravated felonies, firearm offenses, document fraud, and others);

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.

The big difference between in the eligibility requirements is that for permanent residents, there is no need to establish “exception and extremely unusual hardship” on a relative. Another difference is the continuous presence requirements – 7 years for LPRs and 10 years for aliens.

ASYLUM AND WITHHOLDING OF REMOVAL, AND CAT

One defense to removal is establishing a claim under the Asylum law of the United States. Even though there is one application, there are technically three sub-defenses – 1) Asylum, 2) Withholding of Removal, 3) Protection under the Convention Against Torture (CAT).

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