Can TPS holders become permanent residents? It just became a lot easier for those who reside in the Ninth Circuit.
Temporary Protected Status is a designation for nationals of El Salvador, Honduras, Haiti, and other countries. Many people who qualify for TPS entered the United States without inspection. Typically, a person must be “admitted and inspected” to qualify for adjustment of status in the United States. This means that even though they are married to a US Citizen or have a US Citizen child over the age of 21, those who entered without inspection are not able to apply for adjustment of status (the process to obtain a green card.) Instead, many TPS holders who entered without inspection would have to apply for a waiver and return to their home country before obtaining a green card.
Previously, the BIA carved out a loophole when it found that if a TPS holder applied for Advance Parole and traveled to their home country, he would have a lawful admission upon his return which would allow for adjustment of status. This meant that TPS holders who entered without inspection had to obtain a specific travel document, leave and return before they could legally adjust status here in the United States.
New Developments: Adjustment of Status becomes Easier
In late March 2017, the Ninth Circuit decided that being granted TPS was a “lawful admission” for purposes of adjustment of status. What does that mean? Lets take a look at the Ramirez v. Brown Case:
Jesus Ramirez, who came to the United States from El Salvador in 1999, was granted TPS in 2001 and has remained in that status to the present day. In 2012, he married Barbara Lopez, a U.S. citizen, and the couple sought lawful permanent resident status for Ramirez.
The court decided that obtaining TPS status DOES qualify as inspection and therefore a lawful admission. Mr. Ramirez, therefore, was allowed to adjust status without leaving the United States.
Who can benefit from this promising decision?
First, the decision applies only to those residing in the Ninth Circuit (Alaska, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington State). Someone who was granted TPS and resides in one of those states who has a US Citizen immediate relative (spouse, child or parent) may be eligible. They may have other inadmissibility issues such as criminal history, prior removal orders, etc., so it is always best to consult with an attorney before initiating any paperwork.
What to do if someone you know is detained by ICE?
Things can move quickly once a person is detained. ICE can arrest someone at their house, at their workplace, on the street, or they can place an “ICE hold” on those who are detained in a local jail for criminal or other proceedings.
If a person is being held by local authorities under an ICE hold, this typically means that once the criminal proceedings are complete, ICE will take them in to custody at a separate facility. As soon as someone is placed under an ICE hold is the appropriate time to speak to an immigration lawyer and to start gathering documents.
Does the detained immigrant have a plan in place? Here is a good place to start with a preparedness plan.
What information do you need to gather?
- The detained immigrant’s full name and date of birth
- Where are they being held? The ICE detainee locator will help you find the person once in ICE custody. But, before that, you will need to find out if they are in a local jail or facility and exactly where it is.
- If the immigrant is already in ICE custody, see if they have an alien registration number (A#).
Information to prepare for a meeting with an immigration attorney
- When did the immigrant come to the United States? How did he enter? Has he left?
- What was the immigrant doing and where was he when he was detained?
- Does the immigrant have a criminal history? If so, what are the dates and the convictions?
- Has he or she ever been in immigration court before or were they ever detained at the border?
- Has he or she ever been issued a removal order (deportation)?
- Does the immigrant have any United States citizen or lawful permanent resident family members?
- Has anyone ever filed a family petition for a relative?
Who decides whether a detained immigrant will be released?
ICE agents will make the first bond determination. They can opt to release the immigrant on his own recognizance (no bond payment), they can set a bond, or they can deny bond.
If ICE denies bond, that is not the end of the road. The detained immigrant may have an opportunity to request a bond from the Immigration Court.
How does the IJ decide whether or not to grant a bond?
The immigration judge is going to consider whether the immigrant is 1) a “flight risk,” meaning whether or not he is going to appear at future hearings or 2) a danger to the community.
What documents can you submit to show that the immigrant merits a bond?
- Proof of US citizen or lawful permanent resident spouse or children (birth certificates, marriage certificate, etc.) and proof of hardship they will suffer without him.
- Proof of long time residence in the United States
- Proof of paying taxes
- Letters from employers, church members, family, and friends attesting to the good moral character of Immigrant.
- Proof of eligibility for any relief – for example a family petition receipt or approval notice
Does the detained immigrant need an attorney?
An attorney can facilitate communication with ICE, provide information about the immigrant’s options, and can advocate for the immigrant in a bond hearing with the Immigration Court.
Cristina M. Hughes handles bond cases and bond (custody) hearings for immigrants detained in California, Nevada, and at the border. Please call 775.453.4451 or e-mail [email protected] to set up an appointment today.
Tips for Immigrants Pending New Executive Orders
Currently, we are waiting to see how the recent executive order from January 25, 2017 will be enforced. A lot of people, understandably, want to know what steps they can take know to protect themselves in case of the worst-case scenario. Here are steps you can take now if you are a Naturalized U.S. Citizen, Lawful Permanent Resident, Visa Holder, or an Undocumented Immigrant.
- Naturalized U.S. citizens. In particular if you are traveling within 100 miles of any US Border (including the oceans), it is recommended that you carry with you your US passport, or passport card, or a photocopy of your naturalization certificate. Because of the unpredictability of the current situation, keep a photocopy of these documents in a safe place at your home, so that if necessary, someone will have access to them. You may very well need to prove your US Citizenship.
- Permanent residents. Federal law requires that anyone who is NOT a US Citizen carry with them at all times evidence of their lawful status. So, carry your green card with you at all times! As noted for US citizens, you should also keep a photocopy of your green card in a safe place at home so that it can be accessed by someone in case you lose your card and you need it to identify yourself. You should also renew your green card a full 6 months before expiration. If your green card has expired, renew it now. Consider starting the process to naturalize immediately! If traveling back from a lengthy trip abroad, do not sign any documents at the border if it is alleged that you have abandoned your residency. Only an immigration judge can take away your status as a permanent resident.
- Lawfully present nonimmigrants ( DACA, U Visa, EADs, Visitors, Students, H1Bs, etc.). Carry with you at all times your Employment Authorization Document (work permit), I-94 card, passport with entry stamp, or other proof of lawful presence (see the law above). Carry the original with you and keep a photocopy in a safe place at home, especially if you are within the 100 mile border area.
- Undocumented immigrants in the US for more than two years. Keep with you at all times evidence that you have been present for at least two years. Why? Because President Trump just ordered DHS to examine activating a never used provision in immigration law that allows for the immediate removal from the US of anyone who cannot prove they have been here for two years (absent a claim for asylum). We do not know when ICE or CBP might activate the change, but we need to be prepared. Evidence that you might want with you are utility bills, receipts, Facebook posts, mail or any other documentation with your name going back two years. Again, keep this information at home so that it is accessible to someone who can help you. And, make sure you have a family plan in place to call for legal assistance if you fail to return home as usual.
- Undocumented immigrants in the US for less than two years. The bad news is that you need a plan in place on what will happen to your belongings and your family if you do not return home from work, shopping, or school. Make sure your relatives know they can look for your name on the ICE detainee website. We assume that ICE and CBP will not release you on bond, and that if you have a fear or returning home, you will need to communicate that clearly so that you may apply for asylum.
- Undocumented Immigrants with 10 years in the United States and United States Citizen children. Absent criminal convictions, you may be eligible for relief and release on bond. Begin now to prepare the paperwork you will need to secure a bond and to prove your case. Set aside copies of birth certificates of children and proof that you have been here for at least ten years. Don’t be caught unprepared!
- Non-US Citizens (Permanent Residents, Visa Holders, and Undocumented Immigrants) who have a criminal conviction OR are arrested. If you have a criminal conviction, or are even arrested for a crime, you may be detained by ICE. If you have relief from removal, you may be eligible for bond. Prepare for this by saving money for bond now and have the paperwork organized to help your attorney act quickly. If you are arrested and charged with a criminal offense, work with attorneys to fight and avoid a conviction that will have immigration consequences.
- Undocumented Immigrants with prior deportation orders. If you have a prior deportation order and have returned to the United States, you are subject to prosecution by the federal government for the crime of reentry after deportation. There may be an increase in the number of people charged with this crime. Depending on why you were deported you can spend many years in federal prison for reentering the US. Again, start preparing a plan now to handle this situation. If you have a deportation order and never left, NOW is the time to speak to an immigration attorney, obtain a copy of your file from the government, and seek advice about your options to reopen your case. Understand your immigration history!
- For those Arrested by ICE, especially for the undocumented–Have a plan in place. Decide now who picks up the kids from school/daycare, who will be authorized to do so with the school, who to contact first, have a power of attorney prepared for this. Put copies of documents in a secure place. Memorize the phone number of a relative or of an attorney.
- Remember: Don’t panic. Get informed, know your rights, know your options, and make a plan!
What are Removal Proceedings?
Removal Proceedings means that the U.S. Government is seeking to remove you from the country. Generally, you will receive a hearing notice through a letter in the mail. The letter will provide the address for the Immigration Court as well as the date and time of the hearing. When a notice to appear (NTA) is filed with the Immigration Court, this means that the government is outline the legal reasons why you should be removed from the United States.
What is going to happen at the hearing? Do you have to go? Do you need an attorney? What is going to happen at the end? Do you get to stay in the United States? These are all questions that can be answered by a qualified immigration attorney.
Removal Proceedings: Preliminary Hearings
The first kind of hearings are master calendar hearings. There will be many people present and the judge will check with each person to see if they are represented by an attorney, what defenses they will be pursuing, and what the case status is. There will be an interpreter present to translate in case English is not your best language. If there are any deadlines, the Judge will make them clear. If you have an immigration attorney, she will be able to walk you through all of the steps and keep you informed of all hearings.
Removal Proceedings: Individual Hearings
Once all applications for relief are filed, the Immigration judge will schedule an individual hearing. These hearings are scheduled a few months in advance to give you time to gather all supporting documents and prepare all witnesses in your case. At the hearing, you must present your case and demonstrate that according to legal standards, you qualify for the relief being sought. An experienced immigration attorney will identify weaknesses in the case and work to overcome them.
What happens next?
The Immigration Judge will either approve or deny the application. If it is denied, you must appeal to the Board of Immigration Appeals or you may have to leave the United States. An immigration attorney will be able to explain the process and keep you informed of any deadlines.
Do you need an attorney?
No, it is possible to represent yourself. That being said, immigration attorneys are familiar with the removal proceedings and familiar with the legal defenses available. Having an attorney can help ensure that you present the strongest case possible.
Steps to take when confronted with Removal Proceedings:
- Gather information: Look for all of the documents that you have received that relate to immigration (including notices from USCIS) and put them together. Write down your history of travel in to and out of the United States. Write down your goals, questions and concerns.
- Decide to fight and get help: Meet with an immigration attorney to assess your situation and see what options are available. If you do not feel comfortable with the attorney or trust what they are telling you, get a second opinion. If you cannot afford an attorney, there are pro bono organizations that can help orient you. Once you know the options, you can decide on a strategy.
- Go to your hearings! Even if you do not have an attorney, you MUST go to the hearing or else the Immigration Judge may order your removal in your absence.
The Expanded I-601A Waiver
The provisional I-601A waiver which came into effect in 2013 allowed for certain applicants to file for the waiver while still in the United States. The provisional waiver only waives unlawful presence (time spent in the United States without permission) for those subject to the three-year and ten-year bar. The development in the I-601A waiver meant that applicants no longer had to spend months (or even years) in their home country while awaiting a decision on the waiver.
More information about the I-601A provisional waiver here.
What’s new ?
Starting August 29, 2016, the I-601A provisional waiver is expanding. It is a step in the right direction although it still leaves many would be applicants ineligible. There are two significant improvements:
- Anyone eligible for the waiver can file in the United States.
This change expands the ability to file the provisional waiver on Form I-601A to anyone who would be eligible for an unlawful presence waiver. Previously, it was only available to those who had an approved petition and a US Citizen spouse or parent. Now, those who have an approved petition and a lawful permanent resident spouse or parent may apply provisionally from the United States.
|Who was a qualifying relative before?||Who is a qualifying relative now? (8/29/2016)|
|I601A Provisional Waiver (Submitted in the United States)||·United States Citizen Spouse
·United States Citizen Parent
|·United States Citizen Spouse
·United States Citizen Parent
·Lawful Permanent Resident Spouse
·Lawful Permanent Parent
- People with Final Orders of Removal will be eligible for the provisional waiver if they are first approved for advance permission to return on Form I-212.
Individuals subject to final orders of removal, deportation or exclusion will be able to apply for “advance permission” to return via an I-212 Application for Permission to Reapply for Admission into the United States here in the United States. Once approved, then they will be eligible to file for the I-601A provisional waiver. Previously, applicants with final orders had to return to their home country to apply for one waiver and then the other. The process could take years which meant an extended separation from family members while the applicant was outside of the United States. With the new rule, once the I-212 and I-601A are approved, the applicant will consular process which will reduce the time spent outside the United States to a couple of weeks.
Another change is that the provisional waiver will be available now even if applicants were scheduled for a visa interview before January 3, 2013. This was a limitation of the original provisional waiver announced in 2013.
It is important to remember that the applicant still has to show “extreme hardship” to their family member to obtain approval. The applicant also must be physically present here in the United States.
Also, please keep in mind that the change means that more people are eligible for the provisional I-601A waiver however, applicants are still required to leave the country to attend an interview and finish consular processing in their home country. The big difference is that the time the applicant is outside the country will be minimal – a couple of weeks instead of a couple of months.
The rules surrounding unlawful presence, the three-year bar, the ten-year bar, and the I-601A waivers are complex. If you have a lawful permanent resident or United States citizen spouse or parent, you may be eligible for the provisional I-601A waiver. If you have a removal order, you may still be eligible. Please make an appointment with Cristina M. Hughes to assess eligibility and to start your case today!
|What is the 601A Unlawful Presence Waiver?
It is a waiver to overcome “unlawful presence” which accrues when someone is not authorized to be in the United States. Depending on how long someone has been in the United States accruing unlawful presence (without documents), they risk having to spend three years or ten years in their home country.
|How is this waiver different than the 601 Waiver?
The 601A, introduced in March 2013, applies ONLY to unlawful presence and it may be filed in the United States. If the applicant as other grounds of inadmissibility, they will have to apply for the 601 waiver which covers additional ground of inadmissibility. Previously, everyone with unlawful presence had to return to their home country before submitting the waiver. Once abroad, the wait was 6 months to 2 years. Currently, the 601A provisional waiver may be filed while the applicant is still in the United States.
Who qualifies to submit a 601A waiver?
There are 3 main qualifications:
Who is a “Qualifying Relative”? Do my children count?
Only certain relatives are officially qualifying relatives under current law:
What is Extreme Hardship?
For your waiver application to be granted, you need to show that your qualifying relative would experience hardship that is extreme compared to the hardship that is normally encountered when a family is separated. It is not enough to simply show that your family will experience financial hardship. It is also not enough to just show that you or your qualifying relative will be very upset and heartbroken if you are forced to live apart. You also have to demonstrate why your family cannot move to your home country. You must submit evidence that will document the hardship that your qualifying relative will experience.
Do I have to leave the country?
While the 601A waiver is processing you may remain in the United States. If your waiver is approved, you must return to your country to complete the processing of your case. You can expect to be out of the country for approximately 2 to 4 weeks.
Benefits to working with an Attorney: While it is possible to submit the waiver packet on your own, these are the benefits of working with an attorney:
Cristina is experienced in waiver cases. To schedule a consultation to discuss your case, please call (775) 453-4451 or e-mail [email protected]
What is the U-visa?
Congress created the U-visa in an effort to encourage undocumented immigrants to report crimes and to feel confident in turning to local law enforcement for help. Being the victim of a crime can be a terrifying experience which may be made worse by threats of deportation if the crime is reported. The government has recognized that to fight crime, the police and prosecutors need the cooperation of victims. The U-visa was created for those who are without lawful immigration status, who have been the victim of a serious crime in the U.S. Additionally, the victim must prove that he or she has been helpful in the investigation of the crime and has suffered mental or physical harm as a result of the crime.
What are the benefits?
U-visas are typically granted for four years and provides for employment authorization during that time. After three years in U-visa status, you may be able to apply for adjustment of status to that of lawful permanent resident and receive a green card. Additionally, you may be able to include others in your application for U-visa status. Typically, spouse and children are eligible for U-visa derivative status. For those under 21, it may be possible to include your spouse, parents, children, and unmarried siblings under 18.
Are you Eligible?
An immigrant must be the victim of a specifically enumerated serious crime that took place in the United States. Those crimes include: rape; torture, trafficking, incest, domestic violence, sexual assault, sexual exploitation, kidnapping, false imprisonment, murder, manslaughter, felonious assault, and a couple of others. There is no time limit so even if the crime happened years ago, you may still be eligible. Additionally, the immigrant must ask the law enforcement agency to sign off on his cooperation/helpfulness in the investigation. Finally, there must be proof of substantial mental or physical harm as a result of the crime. It is best to obtain a copy of the police report, gather all relevant and consult with an informed immigration attorney, such as Cristina M. Hughes, to assess your eligibility. An experienced immigration attorney will understand the particular requirements of the U-visa and which documents are commonly used to satisfy those requirements.
What is the annual limit for U-visas?
Only 10,000 U-visas may be issued per fiscal year which begins on October 1. While the cap has been met consistently for the past few years, there is a waiting list. Once the application is considered approved, those placed on a waiting list are granted deferred action and are able to apply for work permits. Travel is not typically recommended during the U-visa process. While the wait may be daunting, often, the U-visa is an option that may be a last resort and is therefore worth it.
If you or someone you know has been the victim of a crime in the U.S., the U visa may be a good option to obtain lawful status. There are advantages that come with the U-visa which are not readily available in other immigration benefits. The U-visa is one way that victims of crimes can turn a difficult situation into an opportunity to move forward into a future of stability. Contact Cristina M. Hughes, Esq. an attorney with experience with the U-visa, to discuss your future today.
What is advance parole?
Most commonly, advance parole is filed with form I485, Application to Register Permanent Residence or to Adjust Status. This is the form that is filled out to apply for permanent residency or a “green card.” Advance parole allows individuals to travel outside the United States while the form is pending without abandoning the form. Certain applicants will have their case denied if they travel to a foreign country while their I485 applications are pending and they do not first obtain Advance Parole.
Who can apply?
In addition to those seeking permanent resident status, those who hold Temporary Protected Status (TPS) or Deferred Action for Childhood Arrivals (DACA) can also apply for advance parole.
For those who have had action deferred under DACA (Form I821D), it is possible to travel abroad for educational, employment, and humanitarian purposes. Humanitarian purposes including traveling abroad for medical care as well as traveling to visit ailing relative residing abroad. Each individual purpose requires a separate type of proof relating to the reason for travel. An immigration attorney with experience, such as Cristina M. Hughes, can orient you in what type of proof is necessary to obtain the travel document.
What are the benefits?
Advance Parole is one of the only options for travel outside the United States in certain cases. Specifically, for DACA and TPS, the benefits may be larger than anticipated. First, you may travel outside the United States to take care of necessary business including visiting a sick relative or family members that you have not seen in many years. Additionally, if you are married to a United States citizen yet have not filed any forms with immigration, Advance Parole may help resolve the issue of unlawful presence in certain circumstances. This means that in certain cases, you may no longer require an unlawful presence (I601/A) waiver after your return to the United States with advance parole.
While it is possible to depart and return with Advance Parole, it is important to consult with an immigration attorney to discuss the risks and benefits of applying for advance parole. Depending on the specific facts of your situation, it may be advantageous if done properly. Contact Cristina to make an appointment in our South Lake Tahoe or Carson City office to see if Advance Parole is a good fit for you.
If you are a Carson City area resident in the process of applying for an American visa in order to immigrate permanently to this country, you are probably familiar with the stress, worry and uneasiness that this type of application procedure can cause. After all, visas are denied all of the time to kind and honest people, seemingly without cause – could it happen to you?
The answer is yes – but a good Carson City immigration attorney will be able to guide you through the system and dramatically increase your chances of success.
Visa denial reasons are known in the legal system as “grounds of inadmissibility” and knowing in advance if you might fall afoul of any of these circumstances can truly help your success rate, as it will allow your immigration lawyer to prepare.
As of 2012, these are the top five reasons why visa applications to the U.S. were denied.
- Application does not comply with provisions of law or regulations – Errors, misunderstandings and mistakes are the number one reason why applications get denied – in order to decrease the odds of this happening to you, you need to consult with a skilled immigration lawyer.
- Labor certification – Many people dream of finding a great job in the United States and having their employer sponsor them for an immigration visa. This is a great idea in theory, but very rarely succeeds (as of 2012, the failure rate was 97%!). Your employer will have to demonstrate that no American citizen could fill the role that you are occupying – with over 320 million people in the U.S., this is very difficult to do.
- Unlawfully present 365 days or more – If you have been in this country unlawfully for over 365 days (or more), do not give up hope, but definitely get a great immigration attorney on your side. There are waivers available to cure this ground of inadmissibility. It is best to consult an immigration attorney before submitting any paperwork or departing the United States to attend an interview at a consular post abroad.
- Misrepresentation – Rule number one: do not lie! Even if you have to include some undesirable information, it is best to be completely honest in order to prevent being denied under the category “misrepresentation.” If you lie or misrepresent yourself or your situation and you are caught (and you will be caught) you will face an 80% denial rate. It is not worth the risk!
- Unlawfully present after previous immigration violations – If you have been caught in violation of immigration law in the past (i.e. you were ordered removed or deported and then tried to enter the U.S. illegally), you will need to wait at least ten years before even applying for permission to apply for another US immigration visa. With that said, some people do take a risk and apply again before the ten years is up – they are denied 100% of the time.
If you have an immigration-related question, or are seeking legal counsel then reach out to our team here, or call us at 775-453-4451.
Disclaimer: Information contained in the blog and in this website is provided for general informational purposes only. It is not legal advice nor does it create an attorney-client relationship.
If you are looking to hire an immigration lawyer in the Carson City area, there are a few things that you should consider as you go through your selection process.
One of the most common questions we get is, “do I need an immigration lawyer at all?” After all, you could save money by attempting this complex process on your own. If your case is fairly straightforward, this is something you could attempt to do without professional assistance – that said, there are some very good reasons why you should enlist the help of an immigration lawyer.
- They can help you if any snags arise
- They are experts at filling out forms and documents
- They can provide you with ‘make or break’ advice
- They can greatly improve your chances of success
If you are in the process of choosing an immigration lawyer in Carson City, here are some valuable tips that will help you to make an informed decision.
- Ask your friends and family for references – One of the best ways to choose any service provider is to ask your Carson City area friends and family for their suggestions. If an immigration lawyer has done a fantastic job for someone you know, they should move to the top of your short list.
- Conduct a search on the AILA website – It is always good to search for a lawyer on the American Immigration Lawyers Association (AILA) website – this ensures that you are selecting a lawyer who is in good standing with the bar, and – most importantly – someone who cares enough about immigration law to belong to the national association. They can help you to find a lawyer or narrow your search.
- Compare fees – Now that you have narrowed down your choices to a few great lawyers, it is a good time to compare their fee schedules. Do they charge by the hour? Do they work on a flat fee? How much can you afford, and how much is a successful application worth to you and your family? These pricing factors may help you make your decision.
- Interview the lawyers on your short list – This is the perfect time to book a brief consultation with the lawyers on your short list – one of the best ways to make the final decision is based on how you get along with the individual and how you feel about their service in person.
- Check their credentials – The final step you should take before signing any contract or officially hiring your Carson City Immigration Lawyer? Check their credentials and ensure that they are currently licensed, in good standing and if they have ever faced a disciplinary action for misconduct.
Once you have gone through these five simple steps, it is time to hire your immigration lawyer. These tips will greatly improve your chances of success, and we wish you the best of luck in your endeavor.