written by Hiba Ghalib, Associate, Kuck Immigration Partners
Forecasts of snowstorms and rainfall are not the only ones being made on our evening news lately. Predictions of major reform to our complex, archaic immigration laws are also being announced as bipartisan congressional leadership hunker down in Washington to tackle comprehensive changes in our current immigration system, set to happen in 2013. And, as the winds of change blow, families hoping to fix their immigration problems have begun to come out to ask what they can do.
Over the past several weeks, the attorneys at Kuck Immigration Partners have been fortunate to travel to several local venues to speak to the community about immigration, allowing families and individuals with immigration questions the opportunity to address them. However, after meeting with a few hundred people, you start to see the same questions cycle back and forth. We cannot guess what reform will do, but before we try to predict the future of our immigration laws, let’s first try and understand our current system a little better. To do this, I thought I would take a moment to address the top three questions I have come across in hopes to assist those in similar predicaments.
If I am in the United States after having entered without inspection but I have a U.S. Citizen child or spouse, can’t my child or spouse apply for my greencard?
It’s not that simple. If you entered the U.S. without inspection, you may not adjust status to permanent residency, even if you have U.S. Citizen spouse or child over 21 years of age that can petition for you. To become a permanent resident, you must leave the U.S. and consular process, the same way anyone else would who is outside the United States. However, if you are like most, you have accrued unlawful presence in the United States, which would trigger a three or ten year bar from re-entering the United States once you leave. In such cases, the only way to re-enter is with a waiver of your unlawful presence. New provisional waiver process will be in effect starting March 4, 2013 does not change the requirement of filing the waiver, but simply changes the place and time you can file it. For more information about the provisional waiver, please see Charles Kuck's Provisional Waiver blog HERE and USCIS's explanation HERE.
If you think you are ready to proceed with this process, you also want to ensure that you are otherwise eligible for permanent residency. During many consultations with clients, it’s not uncommon to dig up an old, forgotten arrest for a crime committed while “young and stupid” that you may have thought was not a big deal but could actually render you inadmissible. It’s extremely important to consult with a licensed immigration attorney to advise you prior to filing any immigration forms. Be ready to be candid with your attorney- remember, they are on your side and they cannot help you if they are kept in the dark.
I may have been arrested for shoplifting and a DUI (and honestly I wouldn’t have snatched a pair of socks and the car battery from Walmart had I not been drunk!) But my criminal attorney said if I plead guilty and pay a fine I will not have to go to jail. Will this affect my future immigration case? Could I be ordered removed?
Here’s where it becomes extremely critical to seek advice regarding the immigration consequences of your criminal case. First, if you or a loved one ever gets arrested, make sure you not only consult with a criminal attorney that can assist with his/her criminal charges, but also an immigration attorney who is likely more familiar with the immigration consequences of your pending charges. Do this ASAP. If you or your loved one is confined, be very careful about rushing to pay the criminal bond until you have at least consulted with an attorney. A guilty finding, whether or not it was a plea, will be more difficult to undo. And if you or your loved one has an ICE hold, it will begin to take effect. Someone may tell you that if you plead guilty and pay a fine it will “go away” – however unless you are a U.S. citizen, chances are this is absolutely not true. Even lawful permanent residents who have resided in the U.S. for decades can be put in removal proceedings for a crime committed.
Long story short, prevention is the best medicine. If you cannot not commit a crime, and you cannot not get arrested, at least try to prevent any charge that could have the potential to make you forever barred from lawfully residing in the United States. If you have already been convicted, post-conviction relief is the remedy you may need to explore, but you will definitely need to speak to a qualified attorney to advise you on both your criminal case as well as your immigration case.
If I have been in the United States for over ten years, can I apply to become a permanent resident?
NO NO NO. You may not affirmatively apply for a greencard simply because you have resided in the United States for 10 years. There is no such thing as a “10 year rule”. With that said, IF an individual happens to be placed in removal proceedings, he or she may then qualify for what’s called Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents. To apply for Cancellation one must be able to show that they have resided in the United States for at least ten years, do not have any disqualifying criminal offenses and are otherwise persons or “good moral character”, plus that their U.S. Citizen qualifying relative will suffer extreme and extraordinary hardship if ordered removed. Even if you think you are eligible to apply for Cancellation of Removal, you may do so only a defense to removal proceedings, keeping in mind the fact that not all applicants for Cancellation win, even those that are statutorily eligible.
This list is by no means exhaustive, nor is it intended to be legal advice. Just like every person is unique, so is every person’s case. Even if it appears your neighbor or friend may have been in the exact situation as you, chances are your case is very different. Please call a licensed immigration attorney to discus your case to see what you can do to enjoy lawful status in the United States. And, while you’re near a phone, call your local congressperson and let them know you are in support of comprehensive immigration reform. While I am not one to immediately cancel a picnic if weather forecasters call for rain, I am optimistic that the announcements of impending comprehensive immigration reform will actually happen. Until then, stay tuned…