Immigration Questions & Answers

Carl R. Baldwin, Humberto S. Dominguez

• Publisher: Allworth
• Year: 2020
• ISBN:
  9781621537571
• Edition: 4
• Topic: Diritto
• Subtopic: Diritto dell'immigrazione

A Comprehensive, User-Friendly Guide for Anyone Planning to Live Temporarily or Permanently in the United States The process of acquiring and retaining the right to visit or live in the United States is an interesting and complex subject. US immigration laws have not changed very much during the Trump administration, and yet the experience of immigrating to the United States has definitely been affected by it. In this concise primer, first conceived and designed as a how-to resource for would-be "green card" holders in the 1990s, the process of getting and keeping a visa is explained and updated in this new edition. In simple terms, the authors provide a breakdown of the most important topics in this area with useful examples. With over thirty years of experience practicing law, co-author Humberto S. Dominguez adds valuable insights and observations to this increasingly important topic. The road to legal residence in the United States can be a tricky and elusive endeavor. Immigration Questions & Answers, Fourth Edition, will guide you every step of the way, with a down-to-earth approach and invaluable advice. Chapters cover topics such as:

• Obtaining a short-term visa
• Political asylum
• Temporary Protected Status
• DACA for Dreamers
• The visa lottery
• Helping your spouse get a green card
• Removing conditions on residence
• Visa processing
• Ways to become a US citizen

Persons who hope to visit or live in the United States and even lawyers unfamiliar with immigration law and practice will benefit from this basic guide. People facing particular difficulties in this area, who may ultimately need the assistance of an immigration lawyer, will also benefit from learning the bare essentials.

CHAPTER 1

The 1996 Laws

Two bills signed into law by President Clinton in 1996 were intended to “reform” the immigration laws. Instead, in the opinion of many suffering immigrants and their frustrated attorneys, they turned the law upside down and have had, and continue to have, a devastating effect on many immigrants, including some who had been in legal status in the United States for decades. These two laws were the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). For the sake of brevity we will refer to them as “the 1996 laws.” Here are some of the drastic changes made by the 1996 laws—and the seismic changes wrought by these bills, which are still in effect.

Adjustment of Status

An alien is not eligible to adjust to legal resident status unless he or she has been continuously in valid nonimmigrant status from the moment of first arrival in the United States until the moment of making an application for adjustment. Fortunately, an exception is made to this rule in the case of an alien who is an “immediate relative” (in essence, someone who has entered into a good-faith marriage to a US citizen, a person who is the parent of a US citizen, or a person who is the unmarried child of a US citizen and under twenty-one years of age). For another exception, see the discussion of LIFE (the Legal Immigration and Family Equity Act of 2000), at the end of this chapter.

Affidavit of Support

In March of each year, the Department of Health and Human Services publishes “Federal Poverty Guidelines” for the fifty states (see the appendix for the 2020 guidelines). It used to be necessary for immigrants or their spouses to prove that they, and any dependents, were above the poverty threshold in order to be admissible and be granted an immigrant visa (if still abroad) or adjustment of status (if in the United States). The 1996 laws imposed a requirement that the immigrants or their spouses prove that they will be at 125 percent of the threshold, which has the effect of depriving or complicating the chances of many hardworking but modest-income immigrants of reaching “the American dream.” A change (discussed later) in the regulatory definition of “public charge” put forth by the Trump administration went into effect on February 24, 2020, and will make permanent residence even more elusive to many applicants for visas, particularly parents of US citizens.

Asylum

An alien arriving at a US port of entry either with papers that look dubious or without papers—which is often the case with persons fleeing persecution—are now subjected to an “expedited removal” proceeding. If, under these extremely tense, hurried, and anxious circumstances, the alien cannot convince an immigration agent that he or she has a “credible fear” of persecution, the alien can be sent home on the next plane. It is extremely disturbing to think that people with a genuine reason to fear persecution may be returned as a result of haste, misunderstanding of the English language, and just simple human error. That, however, is how our laws work presently. A recent, alarming development proposed by President Trump would further erode the spirit and intent of the asylum protections that countries around the world are supposed to adhere to by exacting a financial charge for asylum applications.

Criminal Aliens

Under the 1996 laws, legal resident aliens who committed a crime—even a relatively minor offense—years or decades ago and had “paid their debt to society” may find themselves subject to deportation proceedings. A long-established form of relief from deportation, called a 212(c) waiver, which permitted long-term legal residents to avoid deportation if they could show “unusual equities” (rehabilitation, service to the community, a spouse or child who is a US citizen or legal resident), was eliminated. Fortunately, the US Supreme Court stepped in and decided, on June 26, 2001, that an alien who had pled guilty to a crime before the effective date of the 1996 law, with the expectation that a waiver of deportation was available, can still apply for the 212(c) waiver. If the plea was negotiated after the effective date of the law, however, the 212(c) waiver is unavailable.

Overstays

One of the most disturbing features of the 1996 laws is a provision that penalizes people who stay longer than permitted when they first enter the United States in nonimmigrant status. An “overstay” cannot adjust status to legal resident unless he or she is an “immediate relative” (again, parent, “child,” or spouse of a US citizen). If a person who has overstayed must return to the country of origin to apply for an immigrant visa (for example, if the marriage is not to a US citizen, but to a legal resident), the disadvantages are extremely severe. If the alien has overstayed more than 180 days but less than one year, he or she will be barred from readmission to the United States for three years after departure. If he or she has overstayed for more than one year, the bar on admission will be for ten years. The only exception to this rule applies if it can be shown that the three- or ten-year bars would cause “extreme hardship,” not to the alien but to the alien’s legal resident or US citizen spouse or parent. This draconian law virtually makes a mockery of the “family values” that Americans hold dear. In March of 2013, President Obama’s administration, in recognition of the thousands of people stranded because of their reluctance to fly abroad and apply for the risky and time-consuming extreme hardship waiver, allowed a change to the immigration regulations, thus permitting persons living in the United States to apply for a provisional extreme hardship waiver. If the person is granted this provisional waiver he or she would then be allowed to fly abroad and come back, after being issued a visa in the normal course of processing. The sanction of not being permitted back in the United States for the next ten years would no longer be applicable. The trick, however, is getting approved for a provisional waiver. More on that later, in chapter 18 of the book.

Visa Lottery

The 1996 laws made no change to the so-called visa lottery program. The 1997 Nicaraguan Adjustment and Central American Relief Act (NACARA)—enacted to benefit Cubans and Nicaraguans, and Salvadorans and Guatemalans to a lesser extent—did have the effect of removing five thousand visas per year from the lottery, bringing the lottery visa numbers down from fifty-five thousand to fifty thousand. But the big problem with the visa lottery, after the 1996 law, is that the overstay provision has the effect of nullifying a winning lottery number for aliens in the United States who are “out of status.” These lottery winners cannot stay in the United States and adjust status but must go abroad to seek an immigrant visa. The lottery winner who overstayed by more than 180 days will be barred from readmission to the United States for three years after departure from the United States, and the winning number will expire after one year. Winning the visa lottery while out of status in the United States for six months or more may not really be a win after all. The provisional waiver referred to above (and in greater detail in chapter 18) would likely not be processed in time for the lottery winner to reap any advantage or reward.

Was the LIFE Act a Solution?

The LIFE statute (the Legal Immigration Family Equity Act of 2000) was the best that Congress was willing to do after the election of 2000. The bill was signed into law by President Clinton on December 21, 2000. LIFE had a number of components.

The one that generated the most excitement and got the most publicity was the temporary revival of the provision of law called 245(i), until April 30, 2001. That permitted aliens who had entered the United States illegally, or who were out of status, to stay right here and eventually apply for adjustment of status on the basis of a petition filed by a US citizen spouse or other close relative in US citizen or legal resident status—even siblings of a US citizen. It made it possible for immigrant spouses of legal residents to adjust status if they could stay here and wait out the years in the waiting line for an immigrant visa. It also enabled some winners of the visa lottery who were overstays to remain here and adjust status. But wait! That all depended on having a visa petition or labor certification application filed on the alien’s behalf between December 21, 2000, and April 30, 2001. People left out of this equation have gotten tired of waiting for the US Congress to explore extending 245(i).

Immigration law and practice is surprisingly byzantine and complex. Policies and practices change on a daily basis, so much so that it really is hard, even for a seasoned practitioner, to keep up with all the latest developments. Nonetheless, we would urge our readers to keep checking the government’s website at www.uscis.gov.

CHAPTER 2

“Green Card” Defined

This chapter tells you what a so-called green card is, how long it is valid, and what to do to keep it valid. How to get it in the first place will take much of the book to describe.

1. What is a “green card”?

The term “green card” is a nickname for the plastic card that signifies that the holder has a visa as a lawful, permanent resident of the United States (this book will generally use the shorter terms “legal resident” or “permanent resident”). The oldest version of the card was green in color. It was white and pink for many years, and the current version is now green and white, but the name “green card” has stayed.

The official name for the card was for many years “Alien Registration Receipt Card,” although the immigration service now seems to prefer the simpler term “Permanent Resident Card.” The caption “Resident Alien” appears at the top of the front side of the card. The back of the card contains important identifying information. The version in use since 1977 is numbered I-551; the pre-1977 version (now obsolete) is numbered I-151.

2. How long does a green card last?

The card used to last “forever,” or until the holder became a naturalized citizen and turned it in as part of the naturalization procedure. (The A-number, the identifying number on your green card, is recorded on the naturalization certificate.)

Since September 1989, however, the green card has had a lifespan of just ten years. The expiration date is printed on the face of the card. Before this time is up, ideally you should file an application to replace the card. Please note that the card itself is not what grants the holder status as a resident. The card is a document that usually readily proves the holder is someone who has been granted a visa to stay in the United States indefinitely, in essence someone who has made this country their home. Losing or misplacing the card, however, does not mean that the person has lost legal residence. It means that the person has lost their most simple, reliable way of proving their visa status as a permanent resident.

If you plan to remain in the United States permanently, it is a much better idea to become a naturalized citizen as soon as you are eligible to do so (usually either three or five years after getting the green card). This will bring important benefits and responsibilities and will also make it unnecessary to replace the card.

3. What if I do not wish to become a US citizen and my ten-year green card is about to expire? How do I keep it valid?

You must file Form I-90, Application to Replace Permanent Resident Card, with the fee of $540 ($455 for the I-90, and $85 for a biometrics appointment, which the USCIS will arrange for you). Obtain the Form I-90 by calling the forms line at [phone] or by downloading the form at www.uscis.gov. At this website, and indicative of the future trend, you now have the option of filing the replacement application directly online. Indeed, as of May 2019, USCIS announced the intention of implementing eProcessing, a program designed to transition immigration benefits into the digital age. At the outset, visitors are now being allowed to apply to extend their stay online. More applications will be processed digitally in the future.

Now, back to extending the validity of your green card. If you change your address while awaiting your replacement card, make sure that your local US Postal Service office forwards mail reliably. You can now file form AR-11, change of address online as well, whether for an I-90 application or other applications and petitions pending before USCIS. But wait: Wouldn’t you rather become a US citizen? Think it over some more.

4. What good is the green card to me?

With the status that the card signifies, you can live permanently in the United States and work here at any job. You were formerly entitled to some public benefits, but the 1996 welfare “reform” law removed some of those entitlements (see chapter 17).

You can travel outside the United States and use the card with the passport from your country of origin to reenter. If you commit certain crimes, however, your green card will not guarantee you that you can reenter the United States, or rather stay permanently, after a trip abroad. And the green card does not prevent you from being deported (“removed”) if you commit a serious crime, or run afoul of other laws in the United States.

The date your green card is issued is very significant, since roughly three or five years from that date you will be eligible to apply to be naturalized as a US citizen.

5. What are the different ways for me to get a green card?

As we stated earlier, it will take most of this book to answer that question. As a starter, however, here are the principal avenues that lead to legal residence and a green card:

• A petition filed by a US citizen or legal resident for a close family member (see chapters 8 and 12)

• A petition filed by an employer, usually preceded by an application to the US Department of Labor (see chapter 14)

• A successful application for political asylum, followed one year later by an application for what is called adjustment of status (see chapter 5)

• A successful application for the visa lottery (see chapter...