A T-Visa gives temporary legal status and work eligibility to victims who are physically present in the U.S. on account of a severe form of trafficking in persons. The noncitizen must show that s/he would suffer extreme hardship involving unusual and severe harm upon removal. While law enforcement certification is not required for a T-Visa, certification is primary evidence that the noncitizen is a victim.
U.S. employers check to make sure that all employees, regardless of citizenship or national origin, are allowed to work legally in the United States. An Employment Authorization Document (EAD) is proof that the noncitizen uses to show the employer that s/he is allowed to work in the United States. A noncitizen may obtain employment authorization in several ways, including an approved visa or an employment-based visa.
Becoming a United States citizen, known as naturalization, has many benefits, the right to vote, petition for family members to immigrate to the U.S., and the opportunity to travel outside of the U.S. without losing the ability to return. A person may be eligible for Naturalization if s/he is at least 18-years-old and has: lived in the United States as a lawful permanent resident for at least five years (with exceptions for refugees, people who get their green card through asylum, spouses of U.S. citizens, and U.S. military personnel; has displayed good moral character; has been physically present in the United States for at least half of the last five years; has lived in the district or state where s/he is filing from for at least three months; has not spent more than a year outside the United States; and has not made a primary home in another country. Certain applicants have different English and civics testing requirements based on their age and length of time as a lawful permanent residence.
The Violence Against Women Act (VAWA) creates special routes to obtaining lawful status in the United States for noncitizens, women and men, who have been battered or have been the subject of extreme cruelty. To be eligible under VAWA, the noncitizen must: be the spouse or child of an abusive U.S. citizen or permanent resident; have good moral character; and establish that removal or deportation would result in extreme hardship to him/her or his/her child. If the VAWA applicant is a spouse, s/he must establish that s/he entered into the marriage in good faith. Through a self-petitioning process, the VAWA applicant may apply for lawful status without the knowledge or involvement of the abuser.
There are many bars to family-based petitions. Fortunately, there are waivers or “pardons” for some of these bars. Some of these waivers are based on extreme hardship suffered by a qualifying relative. The qualifying relative needed depends on the criminal or inadmissibility ground.
If a noncitizen is not granted asylum or Withholding of Removal, the noncitizen has a slight possibility to still be eligible for Withholding of Removal under the Convention Against Torture (CAT). A person may be eligible for protection under CAT, if it has been established that it is more likely than not that s/he will suffer torture if returned to his/her native country by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. If the noncitizen is not eligible for Withholding of Removal under CAT, s/he may be eligible for Deferral of Removal under CAT.
Lawful Permanent Residents (LPR), who are placed in removal proceedings on or after April 1, 1997, may apply for Cancellation of Removal if the LPR establishes: LRP was lawfully admitted for permanent residence for not less than 5 years; LPR has continuously resided in the U.S. for 7 years after having been admitted; and LPR has not been convicted of any aggravated felony. If the noncitizen is not an LPR, s/he must establish: continuous physical presence in the U.S. for at least 10 years immediately preceding the date of the application; good moral character during such period; there are no disqualifying criminal convictions; and removal would result in exceptional and extremely unusual hardship to his/her spouse, parent, or child, who is a citizen of the United States or an LPR.
A noncitizen detained is given an opportunity for release though a bond hearing. Legal representation in a bond hearing includes presenting the Immigration Judge with favorable factors about the noncitizen in order to obtain the lowest possible bond for release. These factors include:
◦ Length of residence in the United States.
◦ Existence of family ties and community involvement.
◦ Letters from friends, family, and employers attesting to the noncitizen’s good moral character.
◦ Lack of serious criminal history.
◦ A record showing compliance with other court proceedings.
These factors should establish that the noncitizen in detention is not a flight risk and will comply with future immigration proceedings. If the noncitizen has criminal history, such as aggravated felonies or crimes involving moral turpitude, it is more difficult for the noncitizen to be released from detention.
A U-Visa gives temporary legal status and work eligibility to victims of certain qualifying crimes that occurred in the United States. A law enforcement agency must certify that the applicant for the U-Visa has been, is being or is likely to be helpful to the law enforcement agency in the investigation or prosecution of the criminal act. Applicants for a U-Visa may petition for their family members.
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If a resident’s 10-year green card has expired or will expire within the next 6 months, the green card must be renewed in order for the resident to maintain compliance with the terms of their lawful permanent residency. A valid and current green card must be carried by a lawful permanent resident at all times, or s/he may face criminal sanctions.
A noncitizen may be eligible to adjust his/her status if a specific immigrant category is available to him/her. Most noncitizens become eligible for a green card (legal permanent residency) through a petition filed by a family member or an employer. Other noncitizens must adjust their status after first obtaining permanent legal residence through asylum, U-Visa, T-Visa, or VAWA petition, or through a number of other special provisions.
When relief is denied to an immigrant in removal/deportation proceedings, the decision of the Immigration Judge may be appealed to the Board of Immigration Appeals and subsequently to the corresponding Federal Circuit Court.
In order for the applicant to be eligible for Deferred Action for Childhood Arrivals (DACA), the applicant must: be born on or after June 16, 1981; have come to the United States before reaching his/her 16th birthday; have continuously resided in the U.S. since June 15, 2007 up to the present time; be physically present in the United States on June 15, 2012, and at the time of making the DACA application; have entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012; be currently enrolled in school, have graduated from high school, or obtained a general education certificate (GED); and have NOT been convicted of a felony, significant misdemeanor, three or more non-significant misdemeanors and not otherwise pose a threat to national security or public safety.
A noncitizen may be eligible for Asylum if the noncitizen faced past persecution or has a well-founded fear of persecution in his/her native country by the government, or by forces that the government was unable or unwilling to control, on account of race, religion, nationality, membership in a particular social group, or political opinion. With few exceptions, the noncitizen must apply for asylum within one year of entry into the United States to ensure that the proper measures are taken in regards to their legal status.
If a noncitizen is denied asylum, s/he may still be eligible for Withholding of Removal. A noncitizen may be eligible for Withholding of Removal if s/he can establish that it is more likely than not that his/her life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion in the noncitizen’s native county. The persecution may be inflicted either by the government or by persons or organizations, which the government is unable or unwilling to control
A Hardship Waiver waives certain grounds of inadmissibility, i.e. the noncitizen’s unlawful entry into the U.S
A U.S. citizen or LPR may file Form I-130 to petition for immigration benefits for a qualifying relative. A U.S. citizen may apply for: a spouse; unmarried child under 21-years-old; unmarried son or daughter over 21-years-old; married son or daughter of any age; brothers or sisters if U.S. citizen is over 21-years-old; and mother or father if U.S. citizen is over 21-years-old. An LPR may apply for: a spouse; unmarried child under 21-years-old; and unmarried son or daughter 21-years-old or older.
In order for the applicant to be eligible for Deferred Action for Childhood Arrivals (DACA), the applicant must: be born on or after June 16, 1981; have come to the United States before reaching his/her 16th birthday; have continuously resided in the U.S. since June 15, 2007 (the past 5 years), up to the present time; be physically present in the United States on June 15, 2012, and at the time of making the DACA application; have entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012; be currently enrolled in school, have graduated from high school, or obtained a general education certificate (GED); and 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.
Prosecutorial discretion is a decision made by the government whether or not to prosecute an immigrant for unlawful presence in the United States. Decisions regarding prosecutorial discretion are made on a case-by-case basis using a range of factors, including: the noncitizen’s pursuit of education in the U.S.; the circumstances of the noncitizen’s arrival in the U.S.; the noncitizen’s length of presence in the U.S.; whether the noncitizen or any immediate relative has served in the armed forces; the noncitizen’s ties and contributions to the community; whether the noncitizen has a U.S. citizen or permanent resident spouse, child, or parent; the noncitizen’s age; the noncitizen’s ties to his or her home country; whether the noncitizen is likely to be granted some sort of temporary or permanent relief from removal; whether the noncitizen has criminal history or otherwise poses a threat to national security or to public safety, etc. Requests for a favorable exercise of prosecutorial discretion require careful consideration of all of these factors and more.
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