Immigration

The Deferred Action for Childhood Arrivals (DACA) program is an executive action released by the Obama administration in 2012. The program grants undocumented individuals who meet specific requirements temporary protection from deportation and work authorization for a period of two years. Individuals can renew their DACA status every two years so long as the program remains in place and the individual continues to meet eligibility criteria. This program is estimated to benefit close to 800,000 individuals nationwide.

Note: DACA does not grant legal status and may be terminated at any time, with or without a Notice of Intent to Terminate, at the Department of Homeland Security’s discretion. On its own, DACA does not lead to permanent resident status or citizenship no matter how long an individual has been in the program.

On September 5, 2017, the Trump administration announced the end of the DACA program and officially stopped accepting renewal applications on October 5, 2017.

On January 9, 2018, a federal judge in California overseeing a lawsuit filed by the University of California and the State of California issued an injunction that ordered the Trump administration to reopen the program and resume accepting renewal applications.

On January 13, 2018, U.S. Citizenship and Immigration Services (USCIS) announced that they would resume accepting DACA renewal applications in accordance to the January 9 judge’s order.

On February 13, 2018, a federal judge in New York overseeing another lawsuit filed against the Trump administration challenging the termination of the DACA program, issued a second injection that ordered the Trump administration to maintain the program open and continue to accept renewal applications. This second injunction is identical to the injunction set on January 9, 2018, by the federal judge in California.

On April 25, 2018, a federal judge determined that President’s Trump termination of DACA not to be lawful since he did not specify the reasons for the termination.  The federal judge gave the Trump administration 90 days to explain his reasons for terminating DACA. If in 90 days the federal judge concludes that the termination was not valid, there is a chance that initial DACA applications can be filed again.  

Please see updated timeline from the National Immigration Law Center here

Acquisition of Citizenship

Children can acquire citizenship at birth when they are born outside of the United States. You might have acquired citizenship at birth if at least one of your parents was a United States citizen at the time of your birth. Keep in mind that the laws for acquiring citizenship at birth have often changed over the years. Much depends on when you were born and what law for acquisition of citizenship was in effect at that time.

Derivation of Citizenship

Children of U.S. citizen parents who were born abroad may automatically become a U.S. citizen. The law that applies to your case is the law that was in effect at the time you were born.

Under the Child Citizenship Act of 2000, if a child born outside of the United States automatically becomes a U.S. citizen when all of the following conditions have been met on or after February 27, 2001:

• The child has at least one parent, including an adoptive parent who is a U.S. citizen by birth or through naturalization;
• The child is under 18 years of age;
• The child is a lawful permanent resident; and
• The child is residing in the United States in the legal and physical custody of the U.S. citizen parent.

If you were born before February 27, 2001, please contact us to review your case.

For more information, please visit: https://www.uscis.gov/us-citizenship/citizenship-through-parents

Citizenship through naturalization

Individuals who are Lawful Permanent Residents are eligible to apply for naturalization if they meet the following requirements:

• You have been a permanent resident for at least 5 years
  • Exceptions:
    • You have been a permanent resident for 3 years or more, if you became a resident through a U.S. citizen spouse.
    • You have qualifying service in the U.S. armed forces.
• Ability to read, write, and speak basic English
  • You may be required to attend an interview with an immigration officer who will test you on your English and U.S. civics.
  • The interview and test can be done in your own language if:
    • You are over 50 years old and have been a permanent resident for 20 years
    • You are over 55 years old and have been a permanent resident for 15 years
    • You are over 65 years old and have been a permanent resident for 20 years (you will have a simplified version of the civics test)
• Knowledge of U.S. history and civics
  • Link for test material https://www.uscis.gov/citizenship/learners/study-test
• Good moral character
• Individuals with physical or developmental disability or a mental impairment, may be exempt from the English and civics naturalization requirements.

For more information, please visit:

https://www.uscis.gov/us-citizenship/citizenship-through-naturalization

Adjustment of Status

If you are a U.S. citizen, you can petition the following family members to migrate lawfully to the United States:

1. Spouse
2. Children
3. Parents
4. Siblings

Your spouse, single children under the age of 21, and parents, are your immediate family members and will always have a visa available to them.  Only they would be able to file for adjustment of status if they are in the United States and were admitted or paroled into the country.

If you entered the United States without inspection and a family member petitioned for you before April 30, 2001, you will be able to file for adjustment of status under 245(i).  This law allows anyone who would otherwise not be eligible for adjustment, to apply for a green card within the United States.

For more information, visit this page: https://www.uscis.gov/i-485

Parole in Place (PIP)

Immediate family members who entered the United States without inspection and have a spouse or son who is in the military, can benefit with parole in place.  This request is filed with USCIS and if granted, it is deemed as an admission to the United States. Then, you will be able to file for adjustment of status to get your green card.

For more information, visit page: https://www.uscis.gov/laws/immigration-commonwealth-northern-mariana-islands-cnmi/parole-immediate-relatives-us-citizens-and-certain-stateless-individuals

Consular Processing

If you entered the United States without inspection or if you are outside the United States, you need to attend an interview for an immigrant visa at a U.S. Consulate or Embassy in your country of birth.  

For this process, your family member who is a U.S. citizen or Lawful Permanent Resident, will file a family petition on your behalf (Form I-130).  Note that if the family member who petitioned for you is a Lawful Permanent Resident or if you are a sibling, married child, or child over 21 years old of a U.S. citizen, you will have a priority date with your Form I-130.  Since you are not an immediate relative, you will have to wait until your priority date becomes current. Click here to see the most current visa bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

Once you have a visa available for you, you will be able to schedule a visa interview at a U.S. Consulate or Embassy in your country of birth.   This is a very complicated process since you have to follow many steps. Please contact our office if you need help.

I-601A Waiver

If you entered the United States without inspection or you entered with a tourist visa but overstayed, you have accrued unlawful presence.  This means that if you have lived in the United States for over one year and then depart, a 10-year-bar kicks in. Without a waiver, you will need to wait in your country of birth 10 years before someone can petition for you.

On March 4, 2013, President Obama allowed immediate relatives (spouses, children and parents) of U.S. citizens to apply for the I-601A waiver before they leave the United States for their consular interview.  This waiver is submitted in the United States. and if approved, the family member goes to the interview at their country knowing that they will come back and will not have to wait 10 years. This waiver only waives your unlawful presence, if you have any other inadmissible issues, you will not be able to benefit from this waiver.

On August 29, 2016, this provisional waiver was expanded to all individuals who are eligible for an immigrant visa. This includes children over 21 and siblings of U.S. citizens, and spouses and children of Lawful Permanent Residents.

Who is eligible for I-601A?

• You are physically present in the United States
• You are 17 years of age or older
• Have an immigrant visa petition approved and have a visa case pending with the Department of State for consular processing (see explanation above)
• Demonstrate that your U.S. citizen or Lawful Permanent Resident spouse or parent will suffer extreme hardship if you cannot come back to the United States

• • IMPORTANT: U.S. citizen children do not make you qualify for this waiver
• You have accrued unlawful presence

For more information, please contact our office and visit this site: https://www.uscis.gov/family/family-us-citizens/provisional-unlawful-presence-waivers

U Visa – Victim of a Violent Qualified Crime

If you are a victim of a criminal activity, you may qualify for U-nonimmigrant status.  In order to be eligible for a U-Visa, you must first provide a certification from a federal, state, or local law enforcement official certifying the following:

• The alien has been a victim of a qualifying criminal activity,

• • (I.e. abusive sexual contact, domestic violence, blackmail, felonious assault, incest, involuntary servitude, kidnapping, manslaughter, murder, prostitution, rape, sexual assault, and other related crimes.)
• The alien possesses information about the qualifying criminal activity, and
• The alien has been, is being or is likely to be helpful to the investigation and/or prosecution of that qualifying criminal activity.

Once you have the certification, then you will have to demonstrate that you suffered physical or psychological abuse due to the criminal activity, that you have information about the criminal activity and that you helped or are willing to help the prosecution of the perpetrator, and that the crime occurred in the United States.

If you are granted a U-nonimmigrant visa, you will get a work authorization for 4 years.  Then you will be able to apply to become a Lawful Permanent Resident.

For more information check this website: https://www.uscis.gov/i-918

If you are a victim of a criminal activity, you may qualify for U-nonimmigrant status.  In order to be eligible for a U-Visa, you must first provide a certification from a federal, state, or local law enforcement official certifying the following:

• The alien has been a victim of a qualifying criminal activity,

• • (I.e. abusive sexual contact, domestic violence, blackmail, felonious assault, incest, involuntary servitude, kidnapping, manslaughter, murder, prostitution, rape, sexual assault, and other related crimes.)
• The alien possesses information about the qualifying criminal activity, and
• The alien has been, is being or is likely to be helpful to the investigation and/or prosecution of that qualifying criminal activity.

Once you have the certification, then you will have to demonstrate that you suffered physical or psychological abuse due to the criminal activity, that you have information about the criminal activity and that you helped or are willing to help the prosecution of the perpetrator, and that the crime occurred in the United States.

If you are granted a U-nonimmigrant visa, you will get a work authorization for 4 years.  Then you will be able to apply to become a Lawful Permanent Resident.

For more information check this website: https://www.uscis.gov/i-918

If you have suffered domestic violence by any of the following people:

• U.S. citizen or Lawful Permanent Resident spouse (or ex-spouse)
• U.S. citizen or Lawful Permanent Resident parent
• U.S. citizen child

You can self-petition to get a green card.  When you self-petition, you do not need your spouse to file a petition on your behalf and for your protection, they will not be notified of your application.  

You are eligible for VAWA if you meet the following requirements:

• Establish qualifying relationship

• • You are married to a U.S. citizen or Lawful Permanent Resident
  • The marriage with your abuser was terminated by death or divorce within 2 years prior to filing your petition
  • You are the child of a U.S. citizen or Lawful Permanent Resident
  • You are the parent of a U.S. citizen son or daughter who is at least 21 years of age when the self-petition is filed

• You have suffered battery/extreme cruelty by your spouse, child, or parent
• If VAWA is through marriage, you entered into the marriage in good faith, not solely for immigration benefits
• You have resided with your spouse, child, or parent
• You are a person of good moral character

If you are a self-petitioning spouse or child and you meet all the requirements listed, you will receive a Prima Facie Determination Notice that is valid for 150 days and you can present it to government agencies to receive certain public benefits.  You will also receive a work authorization document so you can work while you wait for your green card.

For more information, visit this page: https://www.uscis.gov/humanitarian/battered-spouse-children-parents