Green Card eligibility based on family relationship; Inadmissibility Issues and I-601A Provisional Waiver of inadmissibility; Exceptional Cases (I-751 Self-Petition and VAWA), and DACA eligibility.

Yesterday, I presented an immigration seminar at the Holy Rosary Catholic Church. Subjects of my discussion were Green Card eligibility, inadmissibility issues, waivers, and several special eligibility categories. Perhaps, my short outline would be helpful to recognize some elements that apply to you.

You May be Eligible for a Green Card based on Family Relationship as:

Green Card is always available for immediate relatives of USC. Other family members of USC and LRP must wait until immigrant visa is available for their preference category.

There are 5 preference categories:

  • a family member of a U.S. citizen:
    • (F1) unmarried sons or daughters over the age of 21,
    • (F3) married children of any age, and
    • (F4) brothers and sisters of U.S. citizen petitioners 21 or older.

You may be eligible for a green card as a member of a special category as a:

 When applying for a green card:

  1. You must prove your relationship by a birth certificate and/or marriage certificate. Additionally, there is a list of other required documents that you must provide at the time of your application.
  2. Your U.S. sponsor must meet minimum income requirements to support you while in the United States. For example, currently, for a household of 2 people, sponsor must have a minimum income of $20,300 or, if sponsor is in the U.S. armed forces, $16,240. For a household of 3 people, a minimum required income is $25,525, or, if sponsor in the U.S. armed forces, $20,420.
  3. You must not be inadmissible based on your medical history, criminal history and immigration record.

 What does it mean?

  • Unless you overcome the inadmissibility issue, you cannot adjust your status in the U.S. and you cannot receive an immigrant visa if applied abroad at the U.S. consulate.

One of the most common grounds of inadmissibility - Unlawful Presence. It occurs either when a person enters the United States unlawfully or when a lawful status lapses.

There are 3/10 years Inadmissibility Bars:

  • An alien who has been unlawfully present in the United States for a period of more than 180 days but less than 1 year is inadmissible for 3 years.
  • An alien who has been unlawfully present in the United States for one year or more, is inadmissible for 10 years.
    • The three and ten year bars are not “triggered” until a person actually departs the United States.
    • Waivers may be available for these 3 and 10 years bars.

You may be eligible to apply for a 601A Provisional Waiver of inadmissibility.

 What does provisional mean?

Effective March 4, 2013, certain immigrant visa applicants can apply for provisional unlawful presence waiver. You may file Form I-601A before leaving the United States to appear at a U.S. Consulate for your immigrant visa interview.

RULE:                 You are inadmissible ONLY due to the unlawful presence

Immigrants with multiple grounds of inadmissibility to the U.S. CANNOT apply for the provisional waiver using Form I-601A and must instead apply for a waiver outside the U.S. using Form I-601.

When USCIS May Refer Your Case to ICE?

You may be worried that your personal information will be used by USCIS in order to place you into detention or in removal proceedings in Immigration Court if your application is denied. In most cases, this is improbable, but it is not impossible. If you were unlawfully present in the U.S., and have no other law violations, it is highly unlikely that the information you submit to USCIS will be used against you in this way.

Not likely to be referred, unless it involves an individual with a criminal history or fraud violations, or one who poses a threat to national security or public safety.

You should take an honest look at your situation to determine whether your background might raise flags and eventually cause you to be detained or deported. Have you ever provided false information on a government application? Do you have multiple criminal convictions or a history of gang association? Have you been a member of a group that has been linked to terrorist activities? If so, you should consult with an experienced immigration attorney who can advise you before you submit your information to USCIS.

Who is Eligible to Apply?

The 601A Waiver applies ONLY if you are a husband or a wife or a child of the USC.

      1. You are the beneficiary of an approved Immediate Relative I-130 Petition or I-360 Petition and your file is at the National Visa Center (NVC).
      2. You are physically present in the US at the time the waiver request is filed.
      3. You must be at least 17 years at the time the waiver is filed.
      4. You did not have an immigrant visa interview scheduled before January 3, 2013.
      5. The only ground of your inadmissibility is unlawful presence. If USCIS determines that the consulate may make an additional finding of inadmissibility on another ground, the waiver application will generally be denied.
      6. You are not in removal proceedings.
      7. You are not subject to a final order or deportation, exclusion or removal, or subject to reinstatement of a prior removal order.
      8. The denial of the waiver MUST result in extreme hardship to Your qualifying relative.

Who is a qualifying relative?

You must establish that your USC spouse or USC parent would suffer “extreme hardship” if you are refused admission to the United States.

What is “extreme hardship”?

Examples: Relative’s major medical condition, alien’s country is in a state of active war or major political conflict, and other extreme situations.

Limitations of the Provisional Unlawful Presence Waiver.

Does NOT provide any benefits such as employment authorization or advance parole.

Does NOT provide lawful status while pending or approved.

Does NOT stop the accrual of unlawful presence or provide protection from being removed or deported from the U.S.

Does NOT guarantee that the applicant will receive their immigrant visa. After the waiver is approved, the applicant proceeds with the immigrant visa process, attends the immigrant visa interview abroad and is issued an immigrant visa, unless US embassy discovers new evidence not previously disclosed.

If you entered The United States without inspection over 10 years ago, another strategy may be available for you - Cancellation of Removal. Generally, to be eligible for cancellation of removal:

  1. You must have been continuously physically present in the United States for a period of 10 years before you either received a Notice to Appear* or committed a certain serious offenses listed in the immigration laws;
  2. You must have a qualifying relative who is a USC or LPR spouse, parent or child;
  3. You must show that your removal from the United States would cause “exceptional and extremely unusual hardship” to your qualifying relative; and
  4. You must show that you have “good moral character.”

The waiver process is complex, difficult and stressful, but it is a way to resolve a serious immigration problem when you don’t have a lot of other options. You should always review your situation with an experienced immigration attorney who can advise you on the best strategy in your individual case.

As I mentioned earlier, you may be eligible for a green card as a member of a special category, for example:

I-751, Self-Petition for a Permanent Green Card by a Spouse of a USC

Eligibility: You may file Form I-751 without your spouse if:

You entered the marriage in good faith, but:      

  1. your spouse subsequently died; or
  2. the marriage was terminated due to divorce or annulment; or
  3. you have been abused or subject to extreme cruelty by your petitioning spouse; or
  4. Your conditional resident parent entered the marriage in good faith, but you have been abused or subject to extreme cruelty by your parent’s U.S. citizen or lawful permanent resident spouse or by your conditional resident parent; or
  5. The termination of your status and removal from the United States would result in extreme hardship.

I-360, Self-Petition under VAWA (Violence Against Women Act):

It applies to men also.

  • Spouse: You may file for yourself if you are, or were, the abused spouse of a USC or LPR. You may also file as an abused spouse if your child has been abused by your U.S. citizen or permanent resident spouse.  You may also include on your petition your unmarried children who are under 21 if they have not filed for themselves.
  • Parent: You may file if you are the parent of a U.S. citizen, and you have been abused by your USC son or daughter.
  • Child: You may file for yourself if you are an abused child under 21 y.o., unmarried and have been abused by your USC or LPR parent. Your children may also be included on your petition. You may also file for yourself if you are now between 21-25 y.o. if you can demonstrate that the abuse was the main reason for the delay in filing.

 DACA (Deferred Action for Childhood Arrivals):

Announced by President Obama on June 15th, 2012. DACA grants discretionary relief from deportation, issued for two years/with available extension every 2 years; no unlawful presence during deferred action period; it may be renewed, depending on who is the President and the current law; it may be revoked or terminated; it provides for legal work authorization in the US;  it is evaluated on a case-by-case basis.

What DACA does not do:

Not an amnesty for previous or later unlawful presence.

Not a path to permanent residency or US citizenship

Does not allow petitions for family members

Does not allow international travel, though you may apply for travel authorization if approved (exceptional circumstances)

You:

  • Have come to the United States under 16 y.o.
  • Resided in the United States for at least 5 years
  • Were physically present in the US on June 15, 2012 without legal status
  • Currently in school, a high school graduate or GED, or veteran of the US military
  • Must have been under the age of 31 as of June 15, 2012.
  • Have No felony or significant misdemeanor conviction or threat to public safety
  • Can demonstrate economic necessity for work authorization
  • What criminal offenses qualify as a felony? A felony is a federal, state, or local criminal offense punishable by imprisonment for a term over 1 year. Felony includes crimes such as homicide, burglary, rape, extortion, assault, kidnapping, theft, and drug offenses.
  • You are not eligible for DACA if:
  • You have not been convicted of a felony or significant misdemeanor but have convictions for three or more other not-related misdemeanors. Your background check or other information shows that you threaten public safety or national security. Some items that could show that you pose a threat include, but are not limited to: gang membership, participation in criminal activities, or participation in activities that threaten the United States.

    U.S. immigration law and regulations significantly affect how foreign nationals may qualify for immigrant visas or waivers of inadmissibility. If there is a change in (presidential) administration, DACA may be illuminated and all DACA applicants can be deported from the United States.

    If you have ever been arrested or convicted, it is in your best interests to have an immigration attorney review your criminal record before applying for DACA or any other immigrant benefits.

    Call or email me to schedule your consultation to review your eligibility for immigration benefits. Information you share with me is protected under attorney-client confidentiality privilege.I am an experienced immigration attorney on your side. If I determine that you qualify for an immigrant benefit. I will present a strong case on your behalf to the immigration agency requesting an approval of a benefit that you deserve.

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