Chicago Immigration Lawyer Blog

In my previous blog I discussed unlawful presence (ULP) and how leaving the country with ULP can trigger the 3 and 10-year bars to returning to the United States in any legal capacity. However, under certain conditions, USCIS can waive the inadmissibility bar if the applicant meets certain criteria of an I-601 waiver application. Currently, the waiver applicant must process in his own country, waiting up to two years for waiver approval. The new rule proposed by the Obama administration will, if ratified, allow the recipients of an approved I-130 or I-360 immigrant visa to apply for a provisional waiver while remaining in the United States. The proposed rule requires that the applicant be the beneficiary of an approved immediate relative petition and that the qualifying relative must be either a U.S. citizen spouse or U.S.C. parent. Among other qualifications, the applicant for a 601 waiver must be at least 17 years old and not have a pending immigrant visa interview already scheduled at the consulate.

If a non-citizen qualifies for the 601 waiver, he must then prove extreme hardship to a USC spouse or parent. "Extreme Hardship" is the threshold requirement, and must be proven before the USCIS looks at discretionary factors. The applicant must satisfy the USCIS that the unlawful presence bar to returning to this country will cause extreme hardship to a qualifying relative who must be a U.S. citizen spouse or parent. Hardship to the applicant, and hardship to the applicant's USC children are not relevant to the extreme hardship requirement. Extreme hardship can be shown by documented factors including family ties to the United States, age, and health of the U.S. citizen spouse or parents, employment and country conditions. It is important to note that "normal" hardship is not enough proof for the waiver, so it is not enough to say that the qualifying relative will miss the deported spouse or child. One must show by documented evidence why the qualifying relative cannot live in the United States without the undocumented relative, and why the qualifying relative cannot live overseas.

A comprehensive waiver packet includes the I-601 form, an attorney letter or brief in support of the petition, and documents, letters and pictures that support all of the claims in the application. One should consider getting psychologist reports describing the psychological effects on the qualifying relative if the undocumented relative cannot receive legal status in the United States. The packet could also include country adverse conditions that would make it difficult for the qualifying relative to live overseas. Doctor's reports should be included if the qualifying relative has a medical condition, that describe the condition and current and future treatment needs. You should consider hiring an attorney to assist you in processing your immigrant visa application if you have periods of unlawful presence in the United States. A qualified attorney experienced in the waiver process can be essential to a successful petition. In some cases, applying for a waiver for ULP can be detrimental, particularly if you have other grounds of inadmissibility. An attorney experienced in immigration law and consular processing will evaluate your case to determine your best course of action.

Because of recent proposed federal changes to I-601 application waiver process (see my April 3, 2012 blog post below). My next series of articles will focus on unlawful presence and the 601 waiver eligibility. The I-601 application is used to waive several grounds of admissibility for qualified applicants; among them criminal offenses, fraud offenses, failure to attend an immigration hearing, outstanding removal order, and periods of unlawful presence (ULP). Since the recent proposed federal rules for provisional waiver apply only to unlawful presence, ULP will be the focus of this article.

Unlawful Presence
Unlawful presence (INA 212(a)(9)(B)(v)) can accumulate in two ways: first, by entering the United States without a proper visa, travel permit or other legal documentation. The USCIS refers to this as EWI, or "entered without inspection". The second way to accumulate unlawful presence is to enter the United States legally, with some form of valid nonimmigrant visa or parole (such as a visitor's visa, student visa, or temporary worker), and overstay the approved length of time permitted in the United States or otherwise violate the term of the nonimmigrant visa. Both types of ULP's create a barrier to achieving legal residence status by triggering a three or ten year bar.

Three and Ten Year Bar
Pursuant to Sections 212(a)(9)(i) and 212(a)(9)(ii) of the Immigration and Nationality Act (INA) if a foreign national [meaning a citizen of another country] is in the United States without legal status for more than 6 months but less than 1 year, when he leaves the country he triggers a 3-year bar, meaning he cannot come back to the United States in any status for 3 years. When out of legal status for more than one year, the foreign national is subject to a 10-year bar. Both bars for unlawful presence are only triggered when leaving the United States.

If the unlawful presence is the result of an overstay, marriage to a United States citizen or otherwise qualifying as a immediate relative essentially "cures" the unlawful presence, since the beneficiary can adjust status to legal resident while remaining in the United States without having to leave to process his application abroad and thereby triggering the bar. However, under current policy, those foreign nationals who entered the United States illegally, or those who are beneficiaries of the family based preference system applications (non-immediate relatives) must return to their home country to process their immigrant visa's through the U.S. Consulate abroad, thereby triggering the 3 or 10-year bar. Those who must leave the U.S. to Consular Process, even if they came to the United States with a legal visa, include the adult children and siblings of United States Citizens, and the spouses and children of legal permanent residents.

In my next blog, I will discuss the I-601 Waiver process and the requirements for a successful waiver. In the meantime, contact the attorneys at Kalita Law Group P.C. if you have questions about illegal presence or the 3 and 10-year Bars.

This week, the Chicago Tribune reported that President Obama has moved forward with his plans to modify the waiver procedure for aliens with unlawful presence in the United State by allowing the beneficiaries to apply for a provisional waiver while remaining in the United States.

On Monday, the Department of Homeland Security will post for public comment an administrative change intended to reduce the time illegal immigrants would have to spend away from their families while applying for legal status, officials said. The current system requires the applicant to first leave the U.S. to seek a legal visa, but under the proposed change illegal immigrants could claim the time apart from a spouse, child or parent would create "extreme hardship" and allow them to remain in the U.S. as they begin the process. Once approved, the person would be required to briefly leave the country to pick up the legal visa abroad. (Chicago Tribune March 30, 2012)

The Proposed Rule for Provisional I-601 Waivers of Inadmissibility was published this week in the Federal Register. The rule applies to immediate relatives of U.S. Citizens who are inadmissible due to accumulated unlawful presence due to entering the United States without authorization or remaining in the U.S. beyond their authorized period of stay before departing.

Under current immigration law, once an alien is unlawfully present in the United States for more than 6 months but less than a year, he or she is subject to a three-year bar from returning to the United States in any legal capacity. Unlawful presence for more that 1 year subjects the non-citizen to a ten-year bar. The bars are triggered once the non-citizen leaves the United States. The USCIS has discretion to waive the unlawful presence grounds of inadmissibility by way of an I-601 waiver application.

Although the proposed rule allows the beneficiary of an I-130 family based immigration petition to stay in the United States while his I-601 waiver is being processed, the non-citizen must still depart the country to consular process his immigrant visa application from his home country. The proposed rule does not change the eligibility requirements for a waiver of inadmissibility. The filing of the I-601 Provisional Waiver does not confer any legal status, protect against the accrual of additional unlawful presence, or authorize an alien to enter the United States with out legal authorization. However, the proposed rule significantly reduces the amount a non-citizen has to spend separated from his immediate relatives in the United States while overcoming the issue of the 3 and 10 year bars.

To be successful in a waiver of inadmissibility, the beneficiary must successfully prove "extreme hardship" to the qualifying United States Citizen relative by way of documents and hard evidence. The level of proof for extreme hardship is high, and assembling the proper evidence should be done strategically. You should always consider consultation with an immigration attorney experienced in waivers of inadmissibility before attempting an I-601 application on your own.

Its happens more often than you think. Sometimes, it happens to a Legal Permanent Resident who has had a green card for at least 3 years if married to a U.S. citizen, or otherwise 5 years, always pays his taxes, has a family, has good moral character and otherwise meets all of the qualifications for citizenship. He applies for his Citizenship by filing an N-400 application, attends his naturalization interview, and is completely blindsided when his application is denied because his name appears on the voter registration rolls of the state. The fact that he is registered to vote may come as a complete surprise to the applicant. He has never voted in an election, nor did he intend to vote in any election. But the consequences of registering to vote, whether done knowingly or not, can be harsh. The USCIS views it as a false claim to U.S. Citizenship, which is a grounds striping one of his legal permanent residence status and removing him from the country.

More often than not, the misguided voters registration happens when non-citizens with a green card go to the Illinois Department of Motor Vehicles (DMV) to apply for or renew a driver's license. Federal Motor-Voter Laws require DMV employees to offer voter registration to all drivers license and State ID customers, without any screening and without even asking if the customer is a U.S. citizen. Even when the DMV customer has presented a green card, or foreign passport as an I.D., he will be offered an application to register to vote. Sometimes, the non-citizen signs the form by mistake, not realizing that what he signed was a voter's registration form. Sometimes, language is an issue and the applicant doesn't understand what he is signing, or maybe he doesn't even read what he is signing. Very often the non-citizen may mistakenly believe that he is entitled to register because he is being handed a registration form by a government official. He couldn't be more wrong.

However the non-citizen happened to be registered, it doesn't have to be fatal to his citizenship, especially if he never voted in an election. First, the non-citizen should contact the Board of Elections immediately and find out where he was registered. One should obtain a copy of the voters registration form with his signature to make sure it is his. Then, the non-citizen need to immediately get his name removed from the voters registration rolls. Generally, USCIS will require and affidavit stating the circumstances under which the non-citizen was registered.

Regardless if you have applied for an immigration benefit such as Naturalization or if you intend to apply for one in the future, and you have registered to vote or you think you might have registered to vote, you should consulate an experienced immigration attorney to help guide your through the proper steps to correct the error. Kalita Law Group P.C. has handled many such mistaken voters registration cases with excellent results for the Naturalization applicant.

On January 6, 2012, President Obama announced a plan to change the federal regulations on the unlawful presence waiver. This is good news for some undocumented immigrants who have accumulated "unlawful presence" (or ULP)" in the United States for either 6 months or 1 year, which subjects them to a three or ten year bar, respectively. Sometimes called a "601 waiver" the Unlawful Presence bar waiver is available to noncitizens who have not committed crimes and who can prove extreme hardship to U.S. citizen spouse, children or parents.

Under the current rules, even if otherwise eligible for a visa to the United States, the noncitizen must remain in his country for 3 or 10 years or until the unlawful presence waiver is processed, which could take six months to a year or more. The proposed change to the federal regulation will allow noncitizens to request a provisional waiver while they are still in the United States, before heading home to process in their own country for a visa and permanent resident status. The purpose is to minimize the time qualifying immigrants who apply for visa and green cards to avoid being separated from their families for the long periods of time it takes to process the waiver. This change in policy is particularly important to Mexican nationals, who have historically accounted for 75 per cent of all I-601 waiver applications filed.

Referred to as "in country processing" the proposed regulation permits USCIS to grant a provisional waiver to those who qualify before they return to their own country to obtain a visa to the United States. Needless to say, the proposal has angered many Republicans and others who oppose any moderation in immigration law or policy. The proposed change does not require a change in the law and can be affected by a change in rulemaking, which does not require the approval of Congress.

As of this writing, the proposal has not completed the federal rule making process and the provisional waiver is not yet available and will not be available to potential applicants until USCIS publishes a final rule. In country processing of this waiver is not an amnesty, and qualifications for the waiver remain the same. An I-601 waiver is a complicated process and one should seek the assistance of a qualified immigration lawyer experienced in preparing I-601 applications.

For a year now, Congress and the President have been considering including Poland into the Visa Waiver Program. The Visa Waiver Program (VWP) currently allows foreign nationals from the European Union, Australia, South Korea and many other countries (36 in all) to travel to the United States for business or tourism purposes without first obtaining a visitors visa at the U.S. consulate. Each country must meet certain security requirements, and each traveler is limited to a 90-day or less stay in the United States per trip. Poland is the only member of the European Union that is not included in the VWP.

Illinois Congressmen Mike Quigley and Dan Lipinski, and Illinois Senator Mark Kirk have spearheaded the effort to amend the Federal Visa Waiver law. In 2011 they introduced legislation that would allow Poland to participate in VWP, as well as Brazil, Chile, Argentina, and Taiwan. Currently, Poles who want to travel to the United States must apply to the U.S. Embassy abroad for a tourist visa and convince Consulate officers that their return to Poland is guaranteed. Many visitors visas are denied. Because of the high Polish population in certain areas of the United States, conventional wisdom has suggested that with VWP, too many Poles would travel to the United States to obtain jobs here, overstaying their visas and never returning to their home country. The Polish insist the risk of visitors remaining illegally is lower than it once was because there are more jobs closer to home in the United Kingdom, Germany and elsewhere.

There is now deep concern that Mark Kirk's stroke three weeks ago will hamper the efforts of the amendments to the VWP legislation. Kirk was a strong voice in pushing the new legislation forward. Until he returns to work, it is up to others to take up the cause for Poland. Obama, in a 2010 trip to Poland, promised Poland's President Bronislaw Komorowski that Poland would be included in the Visa Waiver Program. We have yet to see that promise materialize.

The 2011 bills to make crucial additions to the Visa Waiver Program are now apparently dead. However, this month Illinois Congressman Mike Quigley has introduced a new bill, HB3855, the Visa Waiver Program Enhanced Security and Reform Act that revives Poland's chance to become a VWP country. Poland is one of America's closest and most steadfast allies. Its soldiers have fought side by side with American troops in Iraq and Afghanistan. It is time we recognized the Polish people as the friends and allies they have proven to be and permit them to visit this country in the same manner we allow the English, French, Italians and other European citizens.

Obtaining a B1/B2 visa to travel to the United States for business or tourism from a non- visa waiver country can be a difficult process. Most consulates now require an application made or filed online in addition to an interview at the consulate. The application process can cost hundreds of dollars. To improve your chances of success, make sure you consult an experienced immigration attorney if you are inviting a friend or relative to visit.

The year 2011 ended with controversy about the inclusion of the term "anchor baby" in the new edition of the American Heritage Dictionary. Anchor baby, it said, is "a child born to a noncitizen mother in a country that grants automatic citizenship to children born on its soil, especially such a child born to parents seeking to secure eventual citizenship for themselves and often other members of their family." A protest ensured from the American Immigration Counsel (AIC), resulting in an immediate and dramatic reversal in the definition. The term "anchor baby," according to the AIC, is derogatory and offensive and should be labeled as such. With a few days, the folks at American Heritage Dictionary redefined the term:

Anchor baby n. Offensive. Used as a disparaging term for a child born to a noncitizen mother in a country that grant automatic citizenship to children born on its soil, especially when the child's birthplace is thought to have been chosen in order to improve the mother's or other relatives' chances of securing eventual citizenship."

But here is the truth about anchor babies. The idea that people (the general perception is Mexican people) actually plan to gain a path to citizenship by coming to the United States to have a baby is very much a fiction. The immigration haters out there claim that anchor babies lead to "chain immigration" in which the baby petitions for the parents and for his/her brothers and sisters, and the parents and siblings then petition in more relatives, and so on and so on. The truth is that the United States Citizen baby cannot petition for his/her parents, or anyone for that matter until he/she is 21 years old. Then, after waiting 21 years for the "anchor baby" to come of age the parents who originally came to the United States undocumented have to return to their country to process their immigrant visa. Upon leaving the United States, the parents will immediately be subject to the 10-year bar prohibiting their re-entry into the United States due to their time of unlawful presence here. Moreover, pursuant to the latest Visa Bulletin from the Department of State, it takes 16 years before an immigrant visa application becomes current if the "anchor baby," who is now an adult U.S. citizen, files for a brother or sister in Mexico, and the beneficiary must wait out that time in Mexico. Do the math and we are looking at 35 to 40 years for the "anchor baby" to successfully petition a relative into the United States.

In spite of the illogical thinking that anchor babies lead to chain immigration, some in the Senate have proposed to amend the Constitution so that children born in the United States are only considered automatic citizens if one parent is a U.S. citizen, one parent is a legal immigrant, or one parent is an active member of the Armed Forces." The Constitution is the Supreme Law of the Land and Citizenship by birth on U.S. soil is a fundamental right, as it is in most countries. To suggest an amendment to our rights of citizenship over resentment of an imagined benefit for foreigners is extreme. Talk about a solution in search of a problem!

Last week, I discussed how family relationships might qualify foreign nationals for legal status in the United States. In this post I will discuss the mechanics of the application process. A qualifying relative can either consular process overseas or adjust status here in the United States depending on his/her location and circumstance. If a person qualifies as an immediate relative, i.e. spouse, minor child or parent, is located in the United States, and entered the United States through legal inspection and admission, and then he/she can generally obtain a Green Card or permanent residence status while remaining in the United States. If the qualifying relative is located outside of the United States, or if the qualifying relative is in a preference category, then he/she must process through the Consulate at the U.S Embassy in a foreign country.

Both an adjustment of status and a consular processing immigration case begins with an application to the USCIS to prove the qualifying relationship. The U.S. Citizen, or Legal Permanent Resident (LPR) who files the I-130 Petition for Alien Relative is called the Petitioner. The qualifying relative who will receive the immigrant visa is called the Beneficiary. On the I-130, the Petitioner designates a U.S. Consulate where the Beneficiary will consular process, or if the Beneficiary is an immediate relative residing in the United States, the Petitioner designates USCIS office where he/she will adjust status. When filing an application for a spouse, both the Petitioner and Beneficiary must complete a G-325A biographic information form. Included with the application is supporting documentation to prove the family relationship. The USCIS has very specific criteria for evaluating the family relationship, and it is therefore recommended that you seek a qualified immigration attorney to guide you through this process. Birth certificates, marriage certificates, divorce judgments from all previous marriages and various other documentation is required in all cases. When petitioning for a husband or wife, evidence must be provided to prove a bona fide marriage. If the USCIS is not satisfied with the evidence submitted, the Service issues a Request for Evidence, (RFE) and the application will be placed on hold until immigration officials receive and evaluate all information requested. An RFE can hold up an application for months, and an immigration attorney should be consulted for any RFE requests you don't fully understand.

If the beneficiary is adjusting status in the United States, then the I-130 can be filed simultaneously with the I-485 Application to Adjust Status to Permanent Resident and application for an Employment Authorization Document (EAD). An interview takes place at the local USCIS district office and both I-130 and I-485 applications are adjudicated at that time. If the Beneficiary is Consular Processing however, he/she must wait for an approval on the I-130 application before proceeding to the next application step. This includes submitting a Department of State application, and the Affidavit of Support to the National Visa Center. If sufficient evidence was supplied to warrant further processing, the Beneficiary is scheduled to appear for an interview at the Consulate. If approved the Beneficiary receives an immigrate stamp in his/her passport and is conferred Legal Permanent Resident status once he/she is admitted to the United States.

Two common ways to immigrant to the United States are through an employer, or through a qualifying relative. As a family immigration lawyer, I concentrate in the area of family reunification, and in this first in a series of articles on family immigration, I will discuss how relatives qualify for a family-based immigrant visa. First, understand that family sponsored immigration has an annual cap, which limits the number of persons that can be admitted in any fiscal year. Certain countries with a high volume of applicants such as China, India, Mexico and Phillippines have their own cap limits, and the rest of the countries fall into an overall group.

Regardless of country, eligible relatives fall into one of two categories: immediate relatives and preference category relatives. There are no limits to the number of immediate relative immigrant visas allocated in any year. There are limits in the number of preference category relatives. Since there is always a backlog of preference category visas from year to year those applications are assigned a priority date and remain dormant until that priority date becomes current. Depending upon the preference category, the wait can be 2 to 10 years or longer.

Immediate Relatives (in which all applications are current) include the following:

• Spouses of United States Citizen (U.S.C.)


• Minor unmarried children of U.S.C.


• Parents of U.S.C provided the petitioner U.S.C. is at least 21 years of age.


• Spouses of deceased U.S.C. who were married for at least 2 years at the time of their USC spouses' death, (provided the were not separated at the time of the U.S.C.'s death.)

Preference Category Relatives include the following:

• 1st Preference - Unmarried sons or daughters of U.S.C. who are 21 years of age or older.


• 2nd Preference -


• 2A- Spouses or children of Legal Permanent Residents (LPR)


• 2B- Adult unmarried sons or daughters of LPR's


• 3rd Preference - Married sons or daughters of USC's


• 4th Preference - Brothers or sisters of citizens of USC, if petitioning USC is at least 21 years old.

Notice there is no category for grandparents of either USC's or LPR's. Also LPR's cannot petition for their own parents or siblings until they become U.S.C.'s.

Anyone in the Immediate Relative category is considered to have a visa available to him/her, and can file the I-130 application with the USCIS to qualify as an immediate relative and then proceed on to processing for LPR status. For those in the preference category, a priority date is established by the U.S.C or LPR Petitioner filing an I-130 application with the USCIS. The application then is put in a queue waiting for the priority date to come current. According to the U.S. Department of State Visa Bulletin for January 2012, for 1st Preference in most areas the priority date is in October 2004, which means there is approximately a 7 year delay in the processing of I-130's. For those countries with their own "per country limit," the Philippines, for example, the 1st Preference category wait is approximately 14 years.

The U.S. Department of State publishes a Visa Bulletin each month with the current priority dates in each category. The Visa Bulletin is easily accessible on the internet at http://travel.state.gov/visa/bulletin/bulletin_1360.html.

Watch this site for more to come on Family Immigration.

The latest round of strict immigrations laws enacted in states like Alabama and Arizona, present a legitimate fear for many residents of being placed in a detention facility and held there indefinitely. Many of these people have not committed any crimes, and although some detainees are undocumented residents, many are long term lawful permanent residents, noncitizens who overstayed a visa, and some may even be United States Citizens who are unlawfully detained. The Secured Communities Program, which has been adopted nationwide, has enormously increased the number of non-criminal or low level offenders who are stuck in detention facilities. At any time, there are over a thousand individuals detained within the Chicago Field Office District alone.

When a non-citizen is taken into custody, he or she can expect to be issued a Notice to Appear (or "NTA"), which is the beginning of the removal process. Once the NTA is issued, a custody determination is made by Immigration & Customs Enforcement ("ICE"). ICE will either release the noncitizen on his on recognizance, or detain him/her and set a bond. The initial bond is generally set very high; a $10,000 bond requirement is common. Unlike state criminal proceedings, in which a person can post a percent of the bond amount, an ICE bond must be paid in full before the detainee is released. Many families cannot afford the initial bond amount set by ICE, leaving the person in ICE detention while his or her court proceedings are pending or until he or she is deported. However, in certain circumstances, a detainee can get his/her bond re-determined and reduced by an Immigration Judge through the process of a Bond Hearing.

An experienced immigration attorney can help you determine whether or not qualify for a bond or a bond re-determination, and present your case before an immigration judge. Generally, people with little or no criminal background, and those who qualify for some type of relief from removal in immigration court are candidates for a bond reduction. The attorney will present a motion to the court for a bond re-determination and represent the detainee before an immigration judge at a Bond Hearing. Generally these hearings are conducted with the attorneys and Judge in the courtroom, with the detainee appearing by videoconference from the detention facility.

To be successful in reducing the ICE bond, the lawyer must demonstrate through evidence that the person is not a flight risk or a danger to the community. She will present evidence that the detainee has ties to people with legal status, a consistent work history, a long residence history in one place, and has been through or is will to go to rehabilitation if there is an apparent alcohol or drug problem. If successful, the bond will be lowered, and assuming the family can afford to post the new bond, the detainee will be permitted to return to his community and family pending his immigration court proceedings. The minimum bond in any case is $1,500.

If you or a member of your family are held by authorities and placed in ICE detention, it is important to contact an experienced attorney as soon as possible. The attorney will work with your family to determine whether or not your qualify for a bond and or bond reduction, and the best possible course to take to minimize your time in detention.

In my last blog, I wrote about how past mistakes, arrests and convictions can make a foreign national deportable or inadmissible, even though he or she has been in this country for many years. Taking an affirmative action, like applying for naturalization, can bring one's negative history to the attention of the Department of Homeland Security, resulting in being placed in removal proceedings. Moreover, even if you have not committed any crimes, but are out of status, your illegal status can be brought to the attention of Homeland Security by a simple traffic stop, or by attempting to re-enter the country after a vacation or trip home to see family.

Once you are in removal proceedings, you are on your way to being returned to your home country, even if you have been in the United States for decades. There are, however, various forms of relief that can extinguish your removal if you qualify. One of the most common forms of relief is called Cancellation of Removal. The qualifications for receiving a Cancellation of Removal waiver are tough, and many people will not be eligible. However, if one is successful, the reward is a second chance to remain in the United States and possibly gain additional immigration benefits.

There are two types of cancellation of removal, one for legal permanent residents or green card holders ("LPR's), and one for non- LPR's, or those with no legal status. Under immigration law (INA § 240A(a)), a Legal Permanent Resident who is placed in Removal proceedings is eligible for cancellation if:

1. he or she has been an LPR for at least 5 years;


2. has resided in the United States continuously for 7 years after being admitted in any status;


3. has not been convicted of an aggravated felony; and


4. merits favorable exercise of discretion.

One of the greatest barrier to cancellation of removal relief for most LPR's is the 7 years of continuous residence requirement. This is because of the "time stop" rule. The continuity of time stops when the foreign national commits certain crimes (crimes of moral turpitude, multiple crimes, aggravated felonies), or when the foreign national is served with the removal papers. Aggravated felonies also drastically limit many LPR's in removal proceedings from qualifying for relief. Many crimes, even those that may appear minor or may even be misdemeanors fall into the INS definition of aggravated felony. And since most LPR's who are in Removal Proceedings are there because they committed a crime, the time stop rule can be an issue. The last qualification - discretionary factors, encompasses things such as family ties in the US, employment history, service in the armed forces, hardship to family in the US if deported, value and service to the community, and other evidence of good moral character.

Cancellation of Removal for non-legal permanent residents is more difficult than that for LPR's. To qualify for cancellation of removal under INA § 240A(b)(1) , the person must establish the following:

1. continuous physical presence in the United States for 10 years immediately preceding the application for relief;


2. good moral character during the 10-year period;


3. have not been convicted of an offense that would make them inadmissible or deportable; and


4. their removal would result in exceptional and extremely unusual hardship to a USX or LPR spouse, parent or child.

That last criteria, exceptional and extremely unusual hardship to a USC or LPR spouse, parent or child is an extremely hard standard to meet. Lower standards of living or adverse country conditions are generally not enough to meet the standard. Factors that meet the exceptional and extremely unusual hardship standard include a serious illness to a child for which treatment would not be available if the child was forced to accompany his or her parent back to their country of origin.

The removal process begins when one is served with a Notice to Appear (an "NTA") before an immigration judge. The NTA has a date and time to appear in immigration court before an immigration judge for a Master Calendar Hearing. If you receive and NTA for any reason, you should immediately seek to retain an immigration attorney who is experienced in Removal Proceedings. Each case is unique and the law is extremely difficult to apply. Only an attorney experienced in Removal Proceedings can competently help you navigate the process. Since there are many other forms of relief other than Cancellation, an immigration attorney will be able to evaluate your case and determine what relief, if any, is available to you, and construct a defense that will be successful in immigration court.

Continue reading "How to Survive the Deportation or Removal Process" »

It is typical for Immigration Lawyers to encourage legal permanent residents (LPR's) to apply for citizenship as soon as they qualify for Naturalization. Only Naturalization will give you the full protection and rights of an American Citizen. Legal Permanent Residents can lose legal status and be placed in removal proceedings for a myriad of reasons. Therefore, without any complicating factors, as an LPR you want to Naturalize as soon as you meet the statutory requirements. You may be eligible to apply for citizenship after three years if you received your green card based on a marriage to a U.S citizen Petitioner. If your permanent residence status was not based on a marriage petition, then you are eligible in 5 years after the date permanent residence was established. You may submit your N-400 application within 3 months of the eligibility date (whether it is 3 or 5 years), and you will be interviewed at the local USCIS Naturalization office, where you must pass an English exam and a U.S. government test. However, LPR's should be mindful that submitting an N-400 Naturalization application to the USCIS can bring unintended consequences as drastic as losing permanent residence status and /or being placed into removal proceedings.

To be eligible for Naturalization, you must meet the following criteria:

1. Must be a lawful permanent resident for 5 years (3 years if married to USC)


2. Must be 18 years old or older


3. Must meet continuous residence and physical presence requirements


4. Must meet the Good Moral Character Requirements for the 5 year period proceeding your application.


5. Must demonstrate knowledge of the English language, U.S, history and Government.

The irony is that even though you meet the eligibility requirements for Naturalization, by filing the N-400 you have brought yourself to the attention of the USCIS. In doing so you may have put yourself in jeopardy of losing your legal status because of committing some error, such as inadvertently registering to vote before you become a citizen, or by pleading guilty to or being convicted of a crime that makes you removable or inadmissible under the Immigration Laws. If you have ever been arrested for any reason, you should consult an experienced immigration attorney before attempting to naturalize. Certain crimes, even minor ones may put you at risk for deportation, even if they happened a long time ago. The following aliens are permanently barred from naturalization and could be subject to removal:

• convicted of an aggrevated felony, on or after November 29, 1990;


• convicted of murder at any time;


• an alien who requested exemption from military service on account of alienage; and


• an alien convicted by court martial of desertion during time of war.

Other issues that could bar naturalization or result in deportation

• have been convicted of one or more crimes involving moral turpitude


• have been convicted of two or more offenses for which the total sentence imposed was 5 years or more;


• have been convicted of any controlled substance violation, except for a single offense of simple possession of 30 grams or less of marijuana;


• have been confined to a penal institution for an aggregate of 180 days or more as a result of a conviction;


• have been convicted of two or more gambling offenses;


• have earned your principal income from illegal gambling;


• have been involved in prostitution or commercialized vice;


• are involved, or have been involved, in smuggling illegal aliens into the United States;


• are, or have been, a habitual drunkard;


• are practicing, or have practiced, polygamy;


• have willfully failed or refused to support dependents;


• have given false testimony, under oath, in order to receive a benefit under the Immigration and Nationality Act;


• are an individual involved in subversive activities;


• are, or have been, a member of the Communist Party;


• are, or have been a deserter during war time, unless you received a pardon or general amnesty;


• are an alien who has removal proceedings pending against you or are subject to an outstanding order of deportation or removal, unless you are eligible for citizenship due to military service;


• have failed to register with the selective service; or


• have any other criminal history.

Aggravated Felonies:
Pleading guilty to, or being convicted of and aggravated felony has very serious immigration consequences, especially if your conviction took place after April 24, 1996. Some examples of aggravated felony offenses include drug trafficking and some some drug possession offenses, crimes of violence or theft/burglary where the sentence is one year or longer, , fraud, deceit, or tax evasion, alien smuggling, certain prostitution offenses, murder, rape, and sexual abuse of a minor.

Crimes Involving Moral Turpitude (CIMT):
United States Immigration laws have defined a category of crimes as CIMT. Generally, these are crimes of theft, fraud, certain assault offenses, and most sex offenses. Even though these can be minor offenses (such as shop lifting) and even misdemeanor crimes, you are deportable for a CIMT if you:
(1) committed the CIMT within the first five years after your admission to the United States, and this is an offense for which a sentence of one year or more could have been imposed (even if your actual sentence included no jail time); OR
(2) committed two CIMTs not arising out of a single scheme at any time after your admission to the United States, regardless of the potential or actual sentence imposed.

The Obama administration recently made the significant decision to stop pursuing deportation for immigrants who had no criminal history. Instead, the administration will review non-criminal immigrants' deportation cases on a case-by-case basis. As a Chicago immigration lawyer, I found this news to be welcome, as did many who feared that President Obama had forgotten his promises to supporters in the immigrant communities.

Early in his term, Obama vowed to make passage of a comprehensive immigration reform law a top priority of his administration. Congress had made no effort of any kind since the Comprehensive Immigration Reform Act of 2007 (CIRA) died in the Senate. Obama's promises brought hope to many that he would put his considerable capital behind pushing comprehensive legislation through both houses of Congress. But as the financial crises lingered, and as Obama set his focus on passing a different kind of comprehensive reform, for health care, the promise of immigration reform kept getting pushed back. Even worse, since 2010, Congress has been far less open to immigration reform than ever before. Virtually all of the Republicans who control the House are hostile to the idea, and several Democrats as well -- making Obama's task that much harder.

Even more troubling, instead of pushing immigration reform, the Obama administration kept many of the same deportation policies as his predecessor. In 2010 alone, 400,000 immigrants were deported, and many more were put into removal proceedings, even those who had committed no crime. Though immigrant groups put pressure on the Obama administration to adopt a strategy that went around Congress, expectations were low enough that the administration's latest approach came as a surprise to many.

The Obama administration was already making non-criminal deportation cases a lesser priority, but now administration officials will review all 300,000 pending deportation cases and place a stay on those that are non-criminal in nature. In particular, the Department of Homeland Security will no longer focus on young people illegally brought into the country by their parents or members of the military. Instead, a DHS-Department of Justice panel will apply specific criteria to the pending cases, including any criminal records, contributions to the community, military service, and family ties. If the panel concludes that the immigrant's background has no red flags, it will put the deportation on hold. As before, any immigrant who wishes to apply for a temporary work visa may do so.

While the new policy is welcome, questions remain. One administration official noted that it does not give the immigration special privileges: his or her case will just be put aside until higher priority cases are dealt with. In some respects, that sounds like a continuation of Obama's previous policy of giving non-criminal cases a lesser priority, but still making them eligible for deportation. How will the administration keep track of "lesser priority" cases? Can immigrants without criminal backgrounds expect unreasonable amounts of surveillance? Immigration attorneys are all too familiar with the abuses their clients face as a result of their vulnerable status. Furthermore, administration officials claim that the number of deportations will not fall from the all-time-high of 400,000; the difference is that there will be a higher percentage of criminals among the numbers deported.

Continue reading "Obama Administration Announces New Immigration Policy: It Will Put Deportations of Non-Criminal Immigrants On Hold" »

It seems the question is being asked in many places lately. Where is President Obama when it the discussion turns to Immigration Reform? In 2008, a corner stone of the Obama campaign was his immigration reform policy. And for that, Obama was heavily supported by the Latino, Mexican-American, and in general the immigration community. But today that support is waning and Obama often is criticized for his lack of action toward any meaningful immigration reform during his administration. In fact, the Obama administration seems to have forsaken true immigration reform and is instead, concentrating enforcement efforts on deportation of both documented and undocumented immigrants who may or may not have criminal history.

Last week, the American Immigration Policy Center published a paper titled "Deportation in the Time of Cholera: DHS's Mixed Response to Haiti's Earthquake" by Royce Bernstein Murray Esq. After the earthquake of January 12, 2010, Haiti was granted Temporary Protective Status ("TPS") by the department of Homeland Security. TPS is a designation used to temporarily halt deportations of foreign nationals from this country to regions experiencing extreme civil unrest and violence or natural disaster devastation. It is used as a type of safe haven for those who are currently in the United States without documentation, but cannot safely go back to their native country. According to the Bernstein article, TPS status for Haitians was summarily dismissed in December 2010 and hundreds of Haitians were rounded up, detained and deported back to Haiti where they were subjected to horrible conditions and deadly illness such as cholera. After much criticism of the Haitian deportations, the administration reversed its policy of removing undocumented Haitians last week, and extended the TPS status for Haitians until January 13, 2013.

But deportations continue to be a priority with the Department of Homeland Security. Controversial quotas have been in place in 2009 and 2010, increasing the number of both criminal and noncriminal deportations to record numbers. In 2010, nearly 400,000 aliens were deported, with thousands more put into removal proceedings. As a Chicago Immigration attorney, I see with more frequency even long-time permanent residents with green cards who are detained by the police, or by CBP at the border or at the airport after a visit to their native country, and placed in removal proceeding because of a decades old conviction for a crime that may even have been a misdemeanor.

And so there are those who were skeptical the of President Obama's visit to the Mexico United States border a couple of weeks ago, where he outlined his policy for major and comprehensive immigration reform. Representative Luis V. Gutierrez, a Democratic congressman from Chicago -- the president's hometown -- and longtime Obama backer, claims that Obama is "playing games with Hispanics by claiming to be fighting for a comprehensive immigration reform, while not doing anything to stop massive deportations of people who shouldn't be deported".

Even though Obama spoke at the border about meaningful immigration overhaul, his efforts fall short. Some consider his recent immigration reform campaign to be little more than political posturing because it is unlikely that any meaningful reform can be passed in this Republican-controlled House of Representatives. Gutierrez has called on Obama to use his Presidential powers to scale back his aggressive deportation policy.

Immigration attorneys and advocates understand that the government does have discretionary power in canceling removal of undocumented aliens and permanent residents whose deportation would have a hardship effect on US citizen spouses, parents and children. Many urge this administration to ease the parameters of "extreme Hardship" cases to allow deserving residents to remain in the United States. Until some action is taken to change current policies, the immigration courts will remain clogged, and many long time permanent residents will have no hope to keep their families united..

Pro-immigrant advocates secured a victory for undocumented immigrants when the Illinois Senate passed the Senate Bill 2185, the DREAM Act. But let us be clear about what the DREAM ACT does and does not do. Unlike the Proposed Federal DREAM Act legislation, the Illinois version is NOT an immigration bill. It grants no immigration benefits to undocumented students, nor does it lead to any path to citizenship. It does not permit visas, or green cards or driving licenses to undocumented students, and does not provide scholarships with public funds. What the Illinois DREAM Act does is provide scholarships that are funded entirely from private contributions for undocumented students. [Note, as an immigration lawyer, I prefer the word "undocumented" and never use the phrase "illegal immigrants"] In order to be eligible for the DREAM Act program, the student must be a resident of Illinois, be enrolled or planning to attend colleges, and must have a federal taxpayer identification number proving that they work and pay taxes.

A popular misconception is that undocumented immigrants currently cannot attend college because they do not have social security numbers. This is not true, and in fact, since 2003, Illinois in-state tuition law has allowed undocumented students to attend Illinois colleges at the same lower in-state tuition rates as other Illinois residents, as long as they resided with a parent or guardian for three years while attending and graduating from a public or private high school in this state. The applicant must also provide the university with an affidavit stating that the individual will file and application to become a permanent resident of the United States as soon as he or she is legally able to do so. Illinois, to its credit, was one of the first states to allow undocumented students access to in-state tuition at Illinois Colleges. Today's local version of the DREAM Act continues in that tradition and extends to these young residents of the state a means of financial aid to get there.

The Kalita Law Group, PC specializes in family immigration issues. We keep a close watch on all pending local, state and federal legislation that affects immigrants and foreign nationals living in this country, and we are always prepared to counsel and guide clients through new laws and procedures as they are implemented.