Common Immigration Cases
Examples of Common Immigration Cases
Adjustment of Status (I-485/I-130)
“Adjustment of status” is the legal terminology used to describe the process of applying for lawful permanent resident status (also known as applying for a Green Card) when you are physically present in the United States. This differs from “consular processing” which is the method someone would typically have to use to obtain a Green Card if they are physically outside of the United States. The eligibility requirements for adjustment of status may vary depending on the immigrant category you are applying under. Common categories for adjustment of status include family relationships (e.g., “immediate relative” of a U.S. Citizen), certain employment-based applicants, Special Immigrant Juveniles (SIJS), Refugees or Asylees, VAWA applicants, and others. The process of adjusting status in a typical family-based case includes filing a number of documents such as a petition by the sponsoring relative, an Affidavit of Support from the sponsor(s), tax and income records, vaccination records, supporting documents to establish identity and the existence of the qualifying family relationship, and numerous other documents. After filing, the USCIS may ask for additional documents by issuing a Request for Evidence (RFE) for which the applicant will have to submit a response. If the sponsor’s petition is approved, the applicant will typically have to undergo biometrics processing at a USCIS support center where certain biometric identifiers will be captured such as fingerprints and photos. If there are no further issues an applicant will typically be scheduled for an interview in which they will have to appear before a USCIS Officer who will make the decision on whether or not to grant the adjustment and issue a Green Card. Additionally, it should be noted that in certain circumstances adjustment of status may be used as a defense to removal during immigration court proceedings.
Removal of Conditions on Residency (I-751)
Your permanent residence status is conditional if it is based on a marriage that was less than two (2) years old on the day you became a permanent resident. Your status is conditional because you must prove that you did not enter the marriage to circumvent the immigration laws of the United States. A conditional permanent resident receives a Green Card that is valid for two years only. To remove the conditions on your permanent resident status, you typically must file a petition within the 90-day period before your conditional Green Card expires. You cannot renew your conditional Green Card. If your conditions are not removed, you will lose your permanent resident status and you will become removable from the United States.
Naturalization & Citizenship (N-400)
In asylum cases the applicant bears the burden of establishing that he or she is a refugee, which requires a showing of past persecution or a well-founded fear of future persecution on account of a protected ground, which may be race, religion, political opinion, nationality, or membership in a particular social group. Please note that an application for asylum typically must be filed within one (1) year of your last arrival into the United States. Asylum applications are generally categorized as either “affirmative” or “defensive.” An affirmative asylum application is when the applicant files their I-589 before the commencement of removal proceedings. Affirmative applications are adjudicated by the United States Citizenship and Immigration Services (USCIS). This process requires undergoing an asylum interview that is conducted by a USCIS Asylum Officer. An affirmative application can be approved, denied, or referred to the immigration court for further adjudication by an Immigration Judge. A defensive asylum application is when an applicant files their I-589 after the commencement of removal proceedings. In other words, the immigration authorities would have already begun removal proceedings in immigration court and the applicant is asking for asylum as a defense to their removal. Generally, a person granted asylum may apply for permanent residence (a Green Card) after being physically present in the U.S. for at least one year after the grant of asylum.
Cancellation of Removal without Lawful Status (EOIR-42B)
In some cases a person who is present unlawfully may be eligible to have their removal cancelled if they can establish in a hearing before an Immigration Judge that (i) they have maintained “continuous physical presence” in the United States for ten (10) years or more, (ii) they have been a person of “good moral character” for ten (10) years, (iii) they have not been convicted of certain offenses, and (iv) their removal would result in “exceptional and extremely unusual hardship” to their United States citizen or lawful permanent resident spouse, parent, or child. If these elements are established, an Immigration Judge can then decide if a favorable exercise of discretion on the application is warranted. If removal is canceled pursuant to this law it results in an adjustment of status (Green Card).
Special Immigrant Juvenile Status / SIJS (I-360)
Special Immigrant Juvenile Status is a potential path to obtaining lawful permanent residence for certain young people. This status covers a person (i) who is under the age of 21 on the date of filing the I-360 SIJS application, (ii) who has been declared dependent by a juvenile court in the U.S., or who has been placed by such court in custody of a state agency or other individual or entity, (iii) whose reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law, and (iv) in whose best interest it is to not be returned to his or her parent’s country of nationality or last habitual residence. Obtaining SIJS status is a multi-step process that involves application to and appearance at the state family court system for the necessary state court order, followed by a different application to USCIS requesting SIJS classification, and then yet another request to adjust status (obtain a Green Card) before an Immigration Judge in immigration court, or before USCIS, depending on the circumstances of the case. It should be noted that once a child receives SIJS status, a natural parent or prior adoptive parent cannot later receive immigration status through the child.
VAWA Self-Petitioners (Battered Spouses, Children or Parents)
Under the federal Violence Against Women Act (VAWA), you may be eligible to become a lawful permanent resident (get a Green Card) if you are the victim of battery or extreme cruelty committed by: (i) a U.S. citizen spouse or former spouse; (ii) a U.S. citizen parent; (iii) a U.S. citizen son or daughter; (iv) a lawful permanent resident (LPR) spouse or former spouse; or (v) an LPR parent. You may self-petition under VAWA by filing a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) without your abusive family member’s knowledge or consent. A person who files a VAWA self-petition is generally known as a VAWA self-petitioner. If your self-petition is approved and you meet other eligibility requirements, you may be eligible to apply to become a lawful permanent resident. Despite the law being titled the Violence Against Women Act, the VAWA self-petition process is available to both male and female applicants. Furthermore, in certain circumstances, it may be permissible for the petitioner’s marriage to have already been terminated at the time the petition is filed.
Crime Victims (U Nonimmigrant)
U.S. immigration law allows noncitizens who have been victims of certain crimes and granted U nonimmigrant status (U Visa) to become lawful permanent residents (get a Green Card). To qualify for a Green Card as a crime victim, you must have U nonimmigrant status and meet certain eligibility requirements. U-1 nonimmigrant status is for victims of certain crimes who have suffered substantial physical or mental abuse and are helpful to the investigation or prosecution of the criminal activity. Qualifying family members of U-1 nonimmigrants may receive U-2 (spouse), U-3 (child), U-4 (parent), or U-5 (sibling) nonimmigrant status. A U Visa holder may apply to adjust status (get a Green Card) if certain eligibility criteria is met. Some of these requirements include but are not limited to: (i) the applicant has been physically present in the U.S. for a continuous period of at least three (3) years since being admitted as a U nonimmigrant and must continue to be physically present through the date that USCIS makes a decision on the adjustment application; (ii) the applicant has not unreasonably refused to provide assistance in the investigation or prosecution of the qualifying criminal activity, starting from when they were first admitted as a U nonimmigrant through the date that USCIS makes a decision on their application; and (iii) the applicant’s continued presence in the U.S. is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest.
The law may provide other ways to receive immigration benefits including via employment, special skills, and more!
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