Immigrating to the U.S. by Petitioning for Lawful Permanent Resident Status through a Family Member

Generally, under U.S. Immigration law there are two pathways to becoming a U.S. citizen. Namely, “employment-based immigration” and “family-based immigration.” Of these two, the most common pathway to becoming a U.S. citizen is through your family members that are either lawful permanent residents (family members with green cards) or United States citizens.

It is extremely important that someone that wants to immigrate to the U.S.A. understands that the U.S. immigration laws differentiate between family members immigrating through lawful permanent residents and U.S. citizens in a number of ways. Although a lawful permanent resident is generally eligible for U.S. citizenship after 3-5 years, they are not U.S. citizens and are only granted rights to work and live in the U.S.A. Further, lawful permanent residents can potentially have their green cards taken away if they fail to follow the rules. For example, a lawful permanent resident that is convicted of robbery will not only be prosecuted for their crimes in the U.S.A., but will be deported to their country of origin.

Because green card holders may, potentially, be deported, or, more likely, eventually obtain citizenship status, the immigration laws differentiate between what types of family members may immigrate through a green card holders and a U.S. citizens.

Pursuant to INA §201, 203, et seq., someone wishing to immigrate to the U.S. (called a “beneficiary”) through a U.S. citizen family member (called a “petitioner”) may do so under the family-based immigration pathway if, but only if, they are the citizen’s: husband or wife; children of the citizen; brother or sister of a citizen older than 21 years of age; mother or father of a citizen older than 21 years of age.

Even though lawful permanent residents are not U.S. citizens, because the purpose of family-based immigration is to allow families to be together, U.S. immigration laws also allow for certain, more limited, family members to immigrate to America through a green card holder as follows: husband or wife of the green card holder, unmarried children under age 21; unmarried sons or daughters age 21 or older.

Even though the law allows for family members to immigrate to the U.S.A. if they meet the family relationships described above, there are still many things that could prevent an individual from actually immigrating.

One common bar is the rule that an immigrant must not be “inadmissible” pursuant to INA §212. For example, if someone aged 24 has been living in the United States illegally for three years, then they are inadmissible under the rules (this is true even though they may be able to obtain a waiver with the help of a knowledgeable attorney).

Probably the biggest bar to immigration though is the “preference system” that is in place. Although there are many family members that can obtain a green card immediately after the government receives an application, many other family member classes do not and have to wait for their visas. This is because the government has set up a system whereby only so many visas are issued to different types of immigrant applicants based on the type of family member that they are.

For example, the total number of visas issued to brothers and sisters of U.S. citizens over the age of 21 is 65,000 in any given year . Of course, there are more than 65,000 applications for a brother or sister of a U.S. citizen in any given year and there simply are not enough visas to go around. This means that most applicants will have to wait for their turn. This process can take many many years and, in some cases, well over a decade.

Another common bar is for individuals that make substantially less than the common American. In order to bring a family member to the U.S.A. through immigration, the petitioning family member must sign a contract with the government essentially promising to protect the government financially if the family member, say, goes on welfare. Poorer families are prohibited from bringing their family members (called “sponsoring”) a beneficiary and bringing their family members to the United States if they can’t prove that they can help the government if their family member needs welfare, etc. This can be helped with finding another family member that is willing to sign that contract with the petitioning family member (called a“joint sponsor”).

Because of the sheer complexity of these barriers, as well as the massive number of immigration laws, IT IS NOT RECOMMENDED that anyone attempt to file immigration paperwork without the assistance of an experienced, knowledgeable, and skilled immigration attorney .

-Drake Shunneson (copyright 2012).

At Shunneson Law Office, we are dedicated to helping you with your immigration problems. Contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday-Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

NOTICE:
The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual. Photos: FreeDigitalPhotos.net.

Do You Qualify For U.S. Citizenship and Immigration Services’ Deferred Action for Childhood Arrivals?

On June 15, 2012 the Secretary of Homeland Security, Janet Napolitano announced that certain young people who were brought to the United States as young children can obtain relief from removal from the country or removal proceedings. The United States Citizenship and Immigration Services has posted that childhood arrivals may request deferred action if they:

  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching their 16th birthday;
  3. Have continuously resided in the United States since June 15, 2007, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of making their request for consideration of deferred action with USCIS;
  5. Entered without inspection before June 15, 2012, or their lawful immigration status expired as of June 15, 2012;
  6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (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, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

In addition, individuals eligible for deferred action will be eligible to apply for work authorization.

Unfortunately, deferred action does not grant you citizenship. In fact, it does not give you any legal status within the United States. As President Obama has stated numerous times, deferred action is merely recognizing that the above individuals do not pose a threat to the American people and, as such, will not be deported. Even though this is a step in the right direction towards giving the “Dreamers” citizenship, it is vital that you DO NOT apply for deferred action until you speak with an attorney about your situation. Even though you may be eligible for deferred action, it may NOT BE IN YOUR BEST INTEREST to submit an application.

-Drake Shunneson (copyright 2012).

At Shunneson Law Office, we are dedicated to helping you with your immigration problems. Contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday-Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

NOTICE:
The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual. Photos: FreeDigitalPhotos.net.

§212(a) Immigration Inadmissibility Grounds and Waivers

The various immigration inadmissibility grounds found under the Immigration & Nationality Act (INA), Section 212 can bar foreign nationals, or aliens, who are visa applicants that seek entry to the United States. Please note that, pursuant to current law, anyone who is in the country, but was not inspected at entry, will also have to prove that they are not inadmissible in removal proceedings. Below are the various grounds of inadmissibility for potential immigrants. I have also included a reference to the section that discusses waivers, if available. There is also a provision for “exceptions” to inadmissibility. These sections of the INA are similar to waivers and can overlap, but also provide a basis for an argument that a waiver is not needed because, in these circumstances, the “ground” for inadmissibility is “excepted” and, therefore, there is no inadmissibility issue. Be careful using exceptions as, very often, you must make sure the law would otherwise apply and you may end up doing a lot of work for nothing. While I have attempted to provide a complete list, please be advised that you should read each of these sections carefully to fully understand the grounds, waivers, exceptions. For example, although 212(d)(3) is generally available as a waiver for non-immigrants, the likelihood of it being available in reality could be drastically limited based upon the ground for inadmissibility and your particular circumstances. There is no substitute for speaking with a knowledgeable attorney to help analyze your case.

As you can clearly see, there are many related categories and the ten most common are provided below. There are also some miscellaneous grounds for inadmissibility relating to students, etc. that are not discussed. 

INA §212(a) Inadmissibility Section Ground Waiver for Immigrant Visas Waiver for Non-Immigrant Visas Exception
212(a)(1) Communicable Diseases 212(g) 212(g);212(d)(3) NA
212(a)(1)(A)(ii) Lacking Vaccinations 212(g) 212(g);212(d)(3) 212(a)(1)(C)
212(a)(1)(A)(iii) Physical or Mental Disorder 212(g) 212(g);212(d)(3) NA
212(a)(1)(A)(iv) Drug Abuser/Drug Addict NA 212(d)(3) NA
212(a)(2)(A)(i)(I) Crimes Involving Moral Turpitude 212(h) 212(h);212(d)(3) 212(a)(2)(A)(ii)
212(a)(2)(A)(i)(II) Drug Crimes 212(h) – Marijuana 212(h);212(d)(3) NA
212(a)(2)(B) Multiple Criminal Convictions 212(h) 212(d)(3) NA
212(a)(2)(C) Controlled Substance Traffickers and Their Families NA 212(d)(3) NA
212(a)(2)(D) Prostitution 212(h) 212(d)(3)
212(a)(2)(E) Asserted Immunity from Prosecution 212(h) 212(d)(3)
212(a)(2)(G) Foreign Government Officials Committing Severe Violent Crimes NA 212(d)(3)
212(a)(2)(H) Significant Traffickers and Their Families NA 212(d)(3) 212(a)(2)(H)(iii)
212(a)(2)(I) Money Launderer NA 212(d)(3)
212(a)(3)(A)(i) Espionage, Sabotage, Prohibited Export Law Violators NA NA NA
212(a)(3)(A)(ii) Unlawful Activity Related to Security NA NA NA
212(a)(3)(A)(iii) Overthrow of the U.S.Government NA NA NA
212(a)(3)(B) Terrorist Activities 212(d)(3)(B) 212(d)(3) 212(a)(3)(B)(ii)
212(a)(3)(C) Adverse Foreign Policy Consequences NA NA 212(a)(3)(C)(ii) and (iii)
212(a)(3)(D) Membership in Totalitarian Party 212(a)(3)(D)(ii) and (iii) 212(d)(3) 212 (a)(3)(D)(ii) and (iii)
212(a)(3)(E)(i) Nazi Party Member NA NA NA
212(a)(3)(E)(ii) Genocide NA NA NA
212(a)(4) Public Charge 213 and 221(g) 212(d)(3) and 221(g) See 212(S)
212(a)(5)(A) Labor Certification 212(k)/NA 212(d)(3)/N/A 212(a)(5)(A)(i)
212(a)(5)(B) Unqualified Physicians NA NA 212(a)(5)(B)
212(a)(5)(C) Uncertified Health Care Workers 212(r) 212(d)(3) 212(a)(5)(C)
212(a)(6)(A) Aliens Present without Admission or Parole (EWI) – Note – ONLY APPLIES WHILE IN THEUSA NA NA VAWA (Note – VAWA Applies in Many, Many Cases and is Referenced As an Aside Due to Its Importance for These Cases
212(a)(6)(B) Failure to Attend Removal Proceedings NA 212(d)(3) NA
212(a)(6)(C) Misrepresentation 212(a)(i); 237(a)(1)(H) 212(d)(3) NA
212(a)(6)(C)(ii) False Claims to US Citizenship – Watch Out for I-9s NA 212(d)(3) 212(a)(6)(C)(ii)
212(a)(6)(D) Stowaways 208: Asylum NA NA
212(a)(6)(E) Smugglers 212(d)(11) 212(d)(11) 212(a)(6)(E)(ii)
212(a)(6)(F) Civil Penalty under INA 247C 212(d)(12) 212(d)(3) NA
212(a)(6)(G) Student Visa Abusers NA 212(d)(3) NA
212(a)(7)(A) Documentation Requirement for Immigrants 211 NA
212(a)(7)(B) Documentation Requirements for Nonimmigrants NA 212(d)(4)
212(a)(8)(A) Ineligible for citizenship under INA 314 or 315 NA NA NA
212(a)(8)(B) Draft Evaders Pardons 212(d)(3) 212(a)(8)(B)
(a)(9)(A)(i) and (ii) Ordered Removed Upon Arrival NA 212(d)(3) 212(a)(9)(A)(iii)
212(a)(9)(B) Unlawful Presence See Exceptions – Waivers are Available 212(d)(3) 212(a)(9)(B)(iii), (iv) and (v) (see v for waiver)
212(a)(9)(C) Unlawful Presence After Prior Immigration Violation See Exception 212(d)(3) (a)(9)(C)(ii) and (iii)
212(a)(10)(A) Immigrant Polygamists NA NA NA
212(a)(10)(B) Guardian Accompanying Inadmissible Helpless Child NA NA NA
212(a)(10)(C) International Child Abduction Exceptions 212(d)(3) 212(a)(10)(c)(iii)

Anyone reading this is also well advised to review the basis for Asylum (INA §208), Cancellation of Removal (INA §240), and Adjustment of Status (INA §245). Just because you are inadmissible does not mean there is no relief available to you.

-Drake Shunneson (copyright 2012).

At Shunneson Law Office, we are dedicated to helping you with your immigration problems. Contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday-Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

NOTICE:
The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual. Photos: FreeDigitalPhotos.net.

It’s About Time: Temporary Protected Status Designated for Nationals of the Syrian Arab Republic

On March 23, 2012, the Secretary of Homeland Security announced its intent to designate Syrian nationals for Temporary Protected Status for eighteen months. The Temporary Protected Status designation for Syria became effective May 22, 2012 and remains in effect until September 30, 2013. This designation means that the United States will not deport eligible Syrian nationals residing in the United states since this country is temporarily unsafe or overly dangerous. The reason for this designation is hardly surprising. The political turmoil and military actions in Syria have made it extremely dangerous for virtually everyone that is living there and it would be against human dignity to force someone to return to this climate.

At this point, some of you may be asking what Temporary Protected Status is. Temporary Protected Status is a designation authorized by § 244 of the Immigration and Nationality Act. Pursuant to this statute, the government “protects” nationals from countries unsafe due to overly dangerous conditions such as armed conflict, severe natural disasters, etc. So long as an alien meets the requirements for Temporary Protected Status, the alien may be granted the same and “Shall not [be] removed” from the United States during the period this status is in effect. They are also granted employment authorizations and allowed work. It is important to note that this is different entirely from Asylum because Temporary Protected Status is country based and ends when the situation improves or the U.S. government otherwise decides to terminate TPS status.

As discussed, to qualify for Temporary Protected Status, a foreign national must meet the statutes’ requirements.

First, The alien must have been continuously physically present and resided in the United States since the effective date of the designation. In the case of Syria, USCIS has stated this means you must demonstrate you have been continually residing and been continually physically present in the United States since March 29, 2012

Second, you must be generally admissible as an immigrant. Even if you are not, you are likely eligible for a waiver. For example, if you have been in the country illegally for a prolonged length of time, then you are barred pursuant to INA §212(a)(9). However, a waiver is available for Temporary Protected Status applicants for humanitarian purposes, to assure family unity or when it would be in the public interest to grant the waiver (§§40.9.2.c.1.D.). However, you are most likely not eligible for a waiver if you have a criminal record or pose a serious threat to the U.S.A. The U.S. government has stated all applicants from Syria will undergo rigorous background checks.

Fourth, and what is most important for you to know right now, is that you have limited time to apply for this visa. Pursuant to the law, you must register during the 180-day registration period. This period began ON MAY 21, 2012 and ends on September 25, 2012. You should also know that this process is complex and you need an experienced lawyer to help you navigate the various forms and prepare the documents. Although the forms, the I-821 and I-765, seem easy to complete, there are many, many other nuances that make them very tricky. For example, you may have some admissibility problems that MUST be addressed and, if you fail to address them, you may have your application rejected even though you might have been eligible for a waiver. This could lead to tragedy, especially for those whose lives will be in danger if they are sent to Syria because of the armed conflict.

Also, after your application is approved, you may remain in the U.S. temporarily as long as Syria remains in the designated category until your country is removed from the designated list of countries. Even then, you may be eligible to file for other forms of relief with the help of an experienced lawyer. There simply is no substitute to obtaining legal help when dealing with your immigration issue, which almost certainly more complex than you realize.

-Drake Shunneson (copyright 2012).

At Shunneson Law Office, we are dedicated to helping you with your immigration problems. Contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday-Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

NOTICE:
The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual. Photos: FreeDigitalPhotos.net.

Proposed Provisional Waiver Rules are Published by DHS and USCIS

In a previous article titled “Explaining the Department of Homeland Security and United States Citizenship and Immigration Services Proposal for Provisional Waivers of Inadmissibility for Certain Immediate Relatives of U.S. Citizens,’ I explained that the government was proposing a new rule for waivers. Under current law, anyone seeking a waiver for unlawful presence must apply for the same outside the USA at a consulate. I explained the new law would allow for certain visa applicants applying through U.S. Citizens to apply for a “provisional waiver” in the USA if their only ground of inadmissibility was unlawful presence and that I intended to update readers on the progress of this proposed rule.

On April 2, 2012, the government issued its proposed rule. Please note that this rule is not in effect and USCIS will not accept any applications for provisional waivers. Even though this rule will tremendously help those US Citizens that would suffer extreme hardship by being forced to wait for a waiver application submitted at a US consulate abroad, it has one very large flaw. Namely, certain relatives of LPRs (mainly spouses), will suffer the same hardship by being forced to wait for their qualifying relatives to apply for, and receive, a waiver at a U.S. consulate abroad. In response, I wrote the following comment and I strongly recommend all those reading this article also submit a comment requesting the government change the rule to correct this inequality prior to the June deadline.

Submitted Comment:

Initially, I applaud the effort by the Dept. of Homeland Security and the U.S. Citizenship and Immigration Services to alleviate extreme humanitarian and financial hardships caused by prolonged separation of US Citizens from their qualifying relatives by allowing for them to remain in the United States while their waiver of inadmissability based on unlawful presence is processed. First, the law is impractical in that it doesn’t allow for a waiver for those that worked illegally. Next, the law also clearly allows for a waiver for qualifying relatives petitioning through a permanent resident (LPR) that would also suffer extreme hardship without a waiver, but there is no proposed provisional waiver for them. Additionally, US citizen’s relatives have a visa immediately available to them while LPR’s relatives must wait before a visa is available (currently by about three years per the Visa Bulletin).Additionally, some LPRs are here following Temporary Protected Status, which makes their home extremely dangerous for them and, if their spouse must leave to obtain a waiver, they may be put in a horrible position of choosing to return to a dangerous country or face extreme hardship in the USA. This will also create unnecessary inefficiency by separating out provisional waivers for those that are relatives of US citizens from those that aren’t.  Lastly, LPRs are, for the most part, eligible for US citizenship within five years and this could push many relatives of LPRs to delay filing for a visa and remain illegal until the LPR becomes a US citizen. This proposed rule appears, therefore, to be unnecessarily discriminatory and guarantees that the proposed purpose (alleviating humanitarian and financial hardships) will not be alleviated for LPRs. As Lincoln once said “let us forget this (immigrant and that immigrant)…Let us discard all these things, and unite as one people throughout the land, until we shall once more stand up declaring that all men are created equal.” -Comment Tracking Number: 8100073a

At Shunneson Law I am devoted to helping you with your immigration problems. Call (847) 693-9120 for more information.

-Drake Shunneson (copyright 2012)

NOTICE:

The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual.

 

Explaining the Department of Homeland Security and United States Citizenship and Immigration Services Proposal for Provisional Waivers of Inadmissibility for Certain Immediate Relatives of U.S. Citizens

February 13, 2012

On January 9, 2012, the U.S. Citizenship and Immigration Services and the Department of Homeland Security submitted a proposed rule for provisional waivers of inadmissibility for certain immediate relatives of U.S. citizens. There has been some confusion lately from many dealing with immigration issues regarding this proposed rule that would allow for individuals to obtain a waiver (“el excepcion”) without leaving the United States. Many believe that this proposed rule is now the law. They also believe that this rule allows for them to get a visa without leaving the United States. This article is written to resolve the growing confusion over the rule and explain what the proposal real means for those seeking visas.

First, as stated, the rule is only a proposed rule. This means that the current law has not yet been changed and that USCIS has only put forward the possibility of a change in the law. As such, this rule is not the law yet and probably will not be for several years, if at all. In fact, in the proposed rule, the government specifically states “Do not send an application requesting a provisional waiver under the procedures under consideration in this notice. Any application requesting this new process will be rejected, and the application package returned to the applicant, including any fees, until a final rule is issued and the change becomes effective.”

The current law requires individuals who have accrued a certain amount of unlawful presence in the United States to be processed at a consulate abroad. The current process also requires that these individuals apply for, and receive, a waiver (excepcion) through application for the same at the consulate. However, the proposed rule, as stated in the Department of Homeland Security’s Notice of Intent would change the law as follows:

  • For immediate relatives of US citizens that are barred on the basis of 212(a)(9)(B)(v) (accrual of unlawful presence) to apply for provisional waivers prior to departing the United States for Consular processing; and
  • The proposed provisional waiver program will be limited to immediate relatives of U.S. citizens who can demonstrate extreme hardship to a U.S. citizen spouse or parent; and
  • The proposed program will also be limited to those whose sole bar to admission is accrual of unlawful presence, which is a flaw in the rule.

The proposed rule will not change the law as follows:

  • USCIS and DHS does not intend to change the legal standard for assessing the eligibility for the waivers; and
  • The proposed provisional waiver program will not apply to those seeking a visa through a lawful permanent resident; and
  • Individuals will still be required to depart the United States for consular processing. The waiver is not effective until the alien leaves the United States.

I hope this clears up the confusion that this proposal has created among many of those trying to navigate the complex web of immigration law.

For an update, See Proposed Provisional Waiver Rules are Published by DHS and USCIS.

At Shunneson Law I am devoted to helping you with your immigration problems. Call (847) 693-9120 for more information.

-Drake Shunneson (copyright 2012)

NOTICE:

The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual.Photos courtesy of FreeDigitalPhotos.net.