The Law Office of Paul V. Balducci

Who qualifies as a nonimmigrant?
A nonimmigrant is a foreign national seeking to enter the United States temporarily for a specific purpose. Once in the United States, they are restricted to the activity or reason for which their visa was issued. They may have more than one type of nonimmigrant visa, but are admitted in only one status.

General requirements for foreign nationals seeking temporary admission include, but are not limited to, the following:

• --The purpose of the visit must be temporary;
• --The foreign national must agree to depart at the end of his/her authorized stay or extension;
• --The foreign national must be in possession of a valid passport;
• --A foreign residence must be maintained by the foreign national, in most instances;
• --The foreign national may be required to show proof of financial support;
• --The foreign national must be admissable or have obtained a waiver for any ground of inadmissability;
• --The foreign national must abide by the terms and conditions of admission.

 

What is the difference between an Immigrant and a Nonimmigrant Visa and how do I know which type I need to apply for?
Immigrant and nonimmigrant visas are for two very different categories of people interested in entering the United States. People who wish to come to the United States for a temporary visit should apply for one of the many nonimmigrant visa types available. People who wish to come to the United States to live should apply for an immigrant visa.

 

I plan to visit the United States as a nonimmigrant. Which type of nonimmigrant visa is right for me?
There are many visa types available to people interested in temporary stays in the United States. Click here to browse the types and learn the basics of each one.

What is a green card?
A green card is an immigrant visa that lets you live in the United States. It is an identification card for immigrants - Lawful Permanent Residents (LPRs) - of the United States who don't have American citizenship. The green card contains the immigrant's photograph, signature, and fingerprint, and allows the LPR to take up any employment or to get self-employed. It is renewable after ten years.

 

What does it give me?
As a green card holder, you are entitled to a large number of benefits. You can work in both the public and private sectors. You can begin a business or join the US armed forces. You can qualify for lower education fees, social security benefits, and health insurance profits.

Besides, you have the right to apply for green cards for other family members, and the possibility to get US citizenship after 3 or 5 years. The duration of time depends upon the type of entry permit (US visa) you hold. Another plus point is that a green card does not affect your residency in another nation. You can maintain your current citizenship (foreign residency) while entering and leaving the United States freely.
Like every US citizen over 18, the green card holders have the right to vote in local and state elections. But, they are disqualified from voting in federal elections.

 

Why do people call it a "green card"?
At one time the green card was green, which is how it got its name. Since then, it has undergone many alterations, including pink, and now looks like this!

 

 

Who qualifies as an immigrant?

An immigrant is a foreign national who has been granted the privilege of living and working permanently in the United States. You must go through a multi-step process to become an immigrant. In most cases, USCIS must first approve an immigrant petition for you, usually filed by an employer or relative. Then, an immigrant visa number must be available to you, even if you are already in the United States. After that, if you are already in the United States, you may apply to adjust to permanent resident status (If you are outside the United States, you will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa.)

 

What are the ways to become an immigrant in the United States?
There are many paths to immigration. Click here to learn more about each.

Most people become U.S. citizens by:

--Birth, either within the territory of the United States or to U.S. citizen parents; or
--Naturalization, the process of obtaining U.S. citizenship.

 

Additionally, any child under the age of 18 who is adopted by a U.S. citizen and immigrates to the United States will acquire immediate citizenship according to the Child Citizenship Act (CCA) passed by Congress in 2000.

 

Naturalization

You may be eligible for naturalization if:

--You have lived in the US for at least 5 years as a permanent resident; or --You have lived in the US for at least 3 years while being married to and living with a U.S. citizen (if you meet all eligibility requirements to file as a spouse of a U.S. citizen).

 

General Eligibility Requirements for US Citizenship
In addition to the 3 year/5 year US permanent residence requirement, to apply for US citizenship, applicants must also:

--Be at least 18 years old at the time of filing the Naturalization Application
--Have been lawfully admitted to the United States;
--Have demonstrated continuous permanent residence;
--Have demonstrated physical presence;
--Have lived for 3 months in the USCIS district or state where the application is filed;
--Demonstrate good moral character;
--Show an attachment to the US Constitution;
--Be able to read, write, speak, and understand basic English;
--Demonstrate a knowledge of US civics (history and government);
--Take the oath of allegiance to the United States;

Rights and Responsibilities of a US Citizen

Becoming a US citizen provides you with new rights and privileges. Citizenship also brings with it important responsibilities:

 

 

To learn more about US Citizenship by naturalization, click here.

What is Intercountry Adoption?

Intercountry adoption is the process by which you:

--Adopt a child from a different country than your own through permanent legal means; and
--Bring that child to your home country to live with you permanently.

Through intercountry adoption, the legal transfer of parental rights from birth parent(s) to another parent(s) takes place. Over the last decade, U.S. families have adopted on average approximately 20,000 children from foreign nations each year.

 

What qualifies as an adoption?

The judicial or administrative act that establishes a permanent legal parent-child relationship between a minor and an adult who is not already the minor’s legal parent and terminates the legal parent-child relationship between the adoptive child and any former parent(s).

 

How does adoption affect immigration status?

Generally speaking, to qualify as an adoption for immigration purposes, the adopted child has the same rights and privileges as a child by birth (such as inheritance rights, etc.).

“Simple,” “conditional,” or “limited” adoptions, such as those conducted under Islamic Family Law in some countries, are more accurately described as guardianship and are not considered adoptions for U.S. immigration purposes.

 

What is the 'Hague Convention' and how does it change international adoption?

On April 1, 2008, the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption went into force for the United States. It establishes important standards and safeguards to protect intercountry adoptions. These protections apply to you if you choose to adopt from a country that is also party to the Convention, and your adoption will be known as a Convention adoption.

 

It requires that Countries who are party to the Convention establish a Central Authority to be the authoritative source of information and point of contact in that country.

-- The Department of State is the U.S. Central Authority for the Convention.

The Convention:

--Aims to prevent the abduction, sale of, or traffic in children;
--Works to ensure that intercountry adoptions are in the best interests of children;
--Recognizes intercountry adoption as a means of offering the advantage of a permanent home to a child when a suitable family has not been found in the child’s country of origin.

--Enables intercountry adoption to take place when:

--Provides a formal international and intergovernmental recognition of intercountry adoption, working to ensure that adoptions under the Convention will generally be recognized and given effect in other party countries.

 

Do I have to adopt from a Hague Convention Country?

No. The Hague Adoption Convention applies to adoptions between the United States and the other counties that have joined it (Convention countries).  You may still adopt from a country that is not a party to the Convention.

 

Are there differences between adopting from Hague Convention and Non-Hague Convention countries?

Adopting a child from a Convention country is similar in many ways to adopting a child from a country not party to the Convention.   However, there are some key differences, and it will be important early on to determine if you wish to pursue a Convention adoption.  In particular, those seeking to adopt receive greater protections if they adopt from a Convention country. 

What is Asylum?

Asylum is a form of protection granted to individuals in the United States who have been persecuted or fear they will be persecuted on account of their race, religion, nationality, membership in a particular social group, or political opinion. Individuals who meet this definition of a refugee and who are already in the United States or who are seeking entry into the United States at a port of entry may qualify for a grant of asylum and be permitted to remain in the United States as long as they are not barred from either applying for or being granted asylum. Individuals who are granted asylum are eligible to apply to adjust their status to that of a lawful permanent resident.

Unlike the U.S. Refugee Program, which provides protection to refugees by bringing them to the United States for resettlement, the U.S. Asylum Program provides protection to qualified applicants who are already in the United States or are seeking entry into the United States at a port of entry. Asylum-seekers may apply for asylum in the United States regardless of their countries of origin and regardless of their current immigration status. There are no quotas on the number of individuals who may be granted asylum each year.

 

You may only apply for asylum if you are arriving in or already physically present in the United States. To apply for asylum in the United States, you may ask for asylum at a port-of-entry (airport, seaport, or border crossing), or, if you are already in the United States, you may file Form I-589, Application for Asylum and for Withholding of Removal, at the appropriate Service Center. You may apply for asylum regardless of your immigration status, whether you are here legally or illegally.

You must apply for asylum within one year of your last arrival in the United States, unless you can demonstrate that there are changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances directly related to your failure to file within one year. You must apply for asylum within a reasonable time given the circumstances. Changed or extraordinary circumstances may include certain changes in the conditions in your country, changes in your own circumstances, and other events. For a non-exhaustive list of circumstances that may be considered changed or extraordinary circumstances, see 8 CFR § 208.4. See also, "Bars to Applying for and Receiving Asylum" in the links below.

You will be barred from applying for asylum if you previously applied for asylum and were denied by the Immigration Judge or Board of Immigration Appeals, unless you demonstrate that there are changed circumstances which materially affect your eligibility for asylum. You will also be barred if you could be removed to a safe third country pursuant to a bilateral or multilateral agreement. Currently, the U.S. has a Safe Third Country agreement with only one country, Canada, and the agreement does not apply to individuals applying for asylum affirmatively.

 

Who is Eligible for Asylum?

You may only apply for asylum if you are arriving in or already physically present in the United States. To apply for asylum in the United States, you may ask for asylum at a port-of-entry (airport, seaport, or border crossing), or, if you are already in the United States, you may file Form I-589, Application for Asylum and for Withholding of Removal, at the appropriate Service Center. You may apply for asylum regardless of your immigration status, whether you are here legally or illegally. You must apply for asylum within one year of your last arrival in the United States, unless you can demonstrate that there are changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances directly related to your failure to file within one year. You must apply for asylum within a reasonable time given the circumstances. Changed or extraordinary circumstances may include certain changes in the conditions in your country, changes in your own circumstances, and other events. For a non-exhaustive list of circumstances that may be considered changed or extraordinary circumstances, see 8 CFR § 208.4.

 

You will be barred from applying for asylum if you previously applied for asylum and were denied by the Immigration Judge or Board of Immigration Appeals, unless you demonstrate that there are changed circumstances which materially affect your eligibility for asylum. You will also be barred if you could be removed to a safe third country pursuant to a bilateral or multilateral agreement. Currently, the U.S. has a Safe Third Country agreement with only one country, Canada, and the agreement does not apply to individuals applying for asylum affirmatively.

 

What is a country profile?

Profiles are papers that provide a detailed history of a given country and identify all of the groups at risk for human rights abuses, what has been done to these groups, and by whom. These papers also discuss relevant issues such as the judicial system and forms of political participation permitted in that country. Profiles are objective papers, which summarize and report a wide range of information available from credible sources, including government agencies, international organizations, other governments, non-governmental human rights monitoring groups, and academic sources. These papers are usually over 50 pages, with a table of contents and index.

The USCIS provides a list of profiles here.

In addition, USCIS offers a list of resources for asylum-seekers here.

What is Temporary Protected Status (TPS)?
TPS is a temporary immigration status granted to eligible nationals of designated countries (or parts thereof). In 1990, as part of the Immigration Act of 1990, Congress established a procedure by which the Attorney General may provide TPS to aliens in the United States who are temporarily unable to safely return to their home country because of ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions. On March 1, 2003, pursuant to the Homeland Security Act of 2002, authority to designate a country (or part thereof) for TPS, and to extend and terminate TPS designations, was transferred from the Attorney General to the Secretary of Homeland Security. At the same time, responsibility for administering the TPS program was transferred from the former Immigration and Naturalization Service (Service) to U.S. Citizenship and Immigration Services (USCIS), a component of the Department of Homeland Security (DHS).
During the period for which a country has been designated for TPS, TPS beneficiaries may remain in the United States and may obtain work authorization. However, TPS does not lead to permanent resident status. When the Secretary terminates a TPS designation, beneficiaries revert to the same immigration status they maintained before TPS (unless that status had since expired or been terminated) or to any other status they may have acquired while registered for TPS. Accordingly, if an alien had unlawful status prior to receiving TPS and did not obtain any status during the TPS designation, the alien reverts to unlawful status upon the termination of that TPS designation.

 

Who is Eligible for TPS?
An alien who is a national of a country (or alien having no nationality who last habitually resided in that country) designated for TPS is eligible to apply for TPS benefits if he or she:
--Establishes the necessary continuous physical presence and continuous residence in the United States as specified by each designation;
--Is not subject to one of the criminal, security-related, or other bars to TPS; and
--Timely applies for TPS benefits. If the Secretary of Homeland Security extends a TPS designation beyond the initial designation period, the beneficiary must timely re-register to maintain his or her TPS benefits under the TPS program.

 

Who is NOT Eligible for TPS?
--Has been convicted of any felony or two or more misdemeanors committed in the United States;
--Is a persecutor, or otherwise subject to one of the bars to asylum; or
--Is subject to one of several criminal-related or terrorism-related grounds of inadmissibility for which a waiver is not available.
For more specific information relating to eligibility, see INA section 244(c)(2) and 8 CFR §§ 244.1 - 244.4.

 

What is Deferred Enforced Departure (DED)?
DED has been granted to nationals of certain countries by the President as an exercise of his constitutional power to conduct foreign relations. DED was first used in 1990 and has been used for a total of five countries. In the past DED has provided for a temporary stay of removal and employment authorization.
As authorized by President Obama on March 20, 2009, qualified Liberians (and aliens without nationality who last habitually resided in Liberia) who were covered under DED as of March 31, 2009, will be provided an additional 12 months of DED (through March 31, 2010).

 

Countries currently eligible for TPS are:

-- El Salvador: Currently designated through September 9, 2010. Most recent TPS re-registration period was from October 1, 2008, to December 30, 2008. Employment Authorization Documents (EADs) are automatically extended through September 9, 2009.

--Honduras: Currently designated through July 5, 2010. Most recent TPS re-registration period was from October 1, 2008, to December 30, 2008. Employment Authorization Documents (EADs) were automatically extended through July 5, 2009.

--Nicaragua: Currently designated through July 5, 2010. Most recent TPS re-registration period was from October 1, 2008, to December 30, 2008. Employment Authorization Documents (EADs) were automatically extended through July 5, 2009.

--Somalia: Currently designated through March 17, 2011. The 60-day re-registration period begins July 27, 2009, and ends September 24, 2009. Employment Authorization Documents (EADs) are automatically extended through March 17, 2010.

--Sudan: Currently designated through May 2, 2010. Most recent TPS re-registration period was from August 14, 2008, to October 14, 2008. EADs were automatically extended through May 2, 2009.

 

Where can I find current information on TPS countries and deadlines?

The USCIS keeps updated information on TPS here.

 

What is VAWA?

Generally, U.S. citizens (USC) and Lawful Permanent Residents (LPRs) file an immigrant visa petition with the U.S. Citizenship and Immigration Services (USCIS) on behalf of a spouse or child, so that these family members may emigrate to or remain in the United States. USCIS Form I-130, Petition for Alien Relative is filed by the USC/LPR, the petitioner, on behalf of the family member who is the beneficiary. The petitioner controls when or if the petition is filed. Unfortunately, some U.S. citizens and LPRs misuse their control of this process to abuse their family members, or by threatening to report them to the USCIS. As a result, most battered immigrants are afraid to report the abuse to the police or other authorities.

Under the Violence Against Women Act (VAWA) passed by Congress in 1994, the spouses and children of United States citizens or lawful permanent residents (LPR) may self-petition to obtain lawful permanent residency. The immigration provisions of VAWA allow certain battered immigrants to file for immigration relief without the abuser's assistance or knowledge, in order to seek safety and independence from the abuser. Victims of domestic violence should know that help is available to them through the National Domestic Violence Hotline on 1-800-799-7233 or 1-800-787-3224 [TDD] for information about shelters, mental health care, legal advice and other types of assistance, including information about self-petitioning for immigration status.

 

Who is Eligible?

To be eligible to file a self-petition (an application that you file for yourself for immigration benefits) you must qualify under one of the following categories:

You may self-petition if you are a battered spouse married to a U.S. citizen or lawful permanent resident. Unmarried children under the age of 21, who have not filed their own self-petition, may be included on your petition as derivative beneficiaries.

Spouse--	You may self-petition if you are a battered spouse married to a U.S. citizen or lawful permanent resident. Unmarried children under the age of 21, who have not filed their own self-petition, may be included on your petition as derivative beneficiaries.
Parent--	You may self-petition if you are the parent of a child who has been abused by your U.S. citizen or lawful permanent resident spouse. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries, if they have not filed their own self-petition.
Child--	You may self-petition if you are a battered child (under 21 years of age and unmarried) who has been abused by your U.S. citizen or lawful permanent resident parent. For more information, please see How Do I Bring My Child to Live in the United States?. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries

 

What are the basic requirements for self-petitioning under VAWA?

The Self-Petitioning Spouse--

--Must be legally married to the U.S. citizen or lawful permanent resident batterer. A self-petition may be filed if the marriage was terminated by the abusive spouse’s death within the two years prior to filing. A self-petition may also be filed if the marriage to the abusive spouse was terminated, within the two years prior to filing, by divorce related to the abuse. --Must have been battered in the United States unless the abusive spouse is an employee of the United States government or a member of the uniformed services of the United States. --Must have been battered or subjected to extreme cruelty during the marriage, or must be the parent of a child who was battered or subjected to extreme cruelty by the U.S. citizen or lawful permanent resident spouse during the marriage. --Is required to be a person of good moral character. --Must have entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits.

The Self-Petitioning Child--

--Must qualify as the child of the abuser as "child" is defined in the INA for immigration purposes. --Any relevant credible evidence that can prove the relationship with the parent will be considered.

 

 

Can a man file a self-petition under the Violence Against Women Act?
Although the self-petitioning provisions for victims of domestic violence are contained in the Violence Against Women Act, they apply equally to victims of either sex.

 

Must the self-petitioner remain married to the abusive spouse until the self-petition is approved?
The regulations only require that the self-petitioning spouse be married at the time of filing. After the self-petition has been filed, legal termination of the marriage will not usually affect the self-petition, but you may want to seek advice from an immigration attorney or legal advocate. Statutory changes, effective October 28, 2000, allow for the marriage to have been terminated (there are some restrictions) within two years prior to the date of filing.

 

Can a divorced spouse seek relief through self-petitioning?
Statutory changes, effective October 28, 2000, allow for the marriage to have been terminated (there are some restrictions) within two years prior to the date of filing. A battered spouse who does not meet these restrictions may be eligible for cancellation of removal. This is provided for under Section 240A(b)(2) of the INA. To qualify he/she must meet the other requirements that would be necessary for approval of a self-petition and must have been physically present in the U.S. for 3 years immediately preceding the filing of the application for cancellation of removal.

A self-petition will also be denied if the self-petitioner re-marries before filing or after filing and before the self-petition is approved. Remarriage after the self-petition has been approved will not affect the validity of the approved I-360 self-petition.

 

What if the abusive US citizen/LPR did file a Form I-130 petition on behalf of the battered spouse which is either still pending or was withdrawn?
A self-petitioner who is the beneficiary of a Form I-130 petition filed by the abusive spouse will be able to transfer the priority date of the Form I-130 petition to the I-360 self-petition. This is extremely important for self-petitioners who must wait for a visa number as an earlier priority date will result in a shorter waiting time.

 

What is VTVPA?

Congress passed the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) in order to provide individuals who have been victimized in the most severe fashion with the ability to: remain in the US (temporarily and in some cases longer) and receive federal and state assistance; protections for certain crime victims including victims of crimes against women; and law enforcement agencies with a comprehensive law that will enable them to pursue the prosecution and conviction of traffickers.

 

Who should be interested in VTVPA information?

--victims of a severe form of trafficking and non-governmental entities who may be working with such victims;
--law enforcement officers, so that they may better understand who is considered a victim of a severe form of trafficking; and
--the general public on how the US Government will pursue traffickers of persons.

 

What visas is VTVPA associated with?

VTVPA is associated with the "T" and "U" visa classifications. USCIS has transmitted an interim final rule to the Federal Register that will allow “T” and “U” nonimmigrants to adjust status their status and become lawful permanent residents.

 

What are "T" and "U" Visas?

Congress created the “T” and “U” nonimmigrant classifications with passage of the Victims of Trafficking and Violence Protection Act in October 2000. The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of persons and other crimes while, at the same time, offering protection to victims of such crimes. The legislation also helps law enforcement agencies to better serve immigrant crime victims.

 

The “T” nonimmigrant status, also known as the “T” visa, was created to provide immigration protection to victims of a severe form of human trafficking.

 

The “U” nonimmigrant status, or “U” visa, is designated for victims of certain crimes who have suffered mental or physical abuse because of the crime and who are willing to assist law enforcement and government officials in the investigation of the criminal activity.

 

What are the eligibility requirements for “T” nonimmigrants seeking adjustment of status?
Applicants for adjustment of status holding a “T” visa must have been lawfully admitted to the United States as a “T” nonimmigrant and must continue to hold such status at the time of application. In addition, “T” visa holders demonstrate:

(1) Physical presence in the United States: “T” nonimmigrants must have been physically in the U.S. for either: (a) a continuous period of at least three years since the date of admission as a “T” nonimmigrant; or (b) a continuous period during the investigation or prosecution of the acts of trafficking, provided that the Attorney General has certified that the investigation or prosecution is complete;

(2) Good moral character since first being lawfully admitted as a “T’ nonimmigrant; and

(3) Continued compliance with any reasonable request for assistance in the investigation or prosecution of the acts of trafficking or extreme hardship involving unusual and severe harm upon removal from the United States.

 

What are the eligibility requirements for “U” nonimmigrant seeking adjustment of status?
Applicants for adjustment of status holding a “U” visa must have been lawfully admitted to the United States as a “U” nonimmigrant and must continue to hold such status at the time of application. In addition, “U” visa holders demonstrate:

(1) Physical presence in the United States for a continuous period of at least three years since the date of admission as a “U” nonimmigrant; and

(2) No unreasonable refusal to provide assistance in the criminal investigation or prosecution.

 

What are the procedures for “T” and “U” visa holders to apply for lawful permanent residence?
Applicants must file the Application to Register Permanent Residence or Adjust Status Form I-485 in accordance with the form instructions. Among other requirements, applicants must also present evidence that they were admitted in either “T” or “U” nonimmigrant status. That evidence may be provided by submitting a copy of the Notice of Action Form I-797. Evidence of continuous physical presence is also required; this can be provided by college transcripts, employment records, or installment payments (e.g., monthly rent receipts, utility bills, etc.) during the requisite time period.

 

Can family members of the “T” or “U” visa holder apply for lawful permanent residence?
Yes. Derivative family members may apply for adjustment of status provided that the principal “T” or “U” visa holder meets the eligibility requirements for adjustment of status and that his/her application for adjustment has been approved, is currently pending, or is concurrently filed.

 

Is there a cap on the number of “T” and “U” nonimmigrants that can apply to adjust status?
USCIS is limited to adjusting status of up to 5,000 “T” nonimmigrants in any given fiscal year. The cap does not apply to eligible family members. There is no numerical cap on the number of “U” nonimmigrant status holders USCIS may adjust in a fiscal year.

 

Are there any limitations on a “T” or “U” nonimmigrant traveling or receiving work authorization while an application for adjustment of status is pending?
“T” or “U” nonimmigrants follow the same requirements for any applicant with a pending adjustment of status application when it comes to travel and work authorization. Advance parole can be requested by filing the Application for Travel Document Form I-131. For work authorization, applicants must submit the Application for Employment Authorization Form I-765.

 

Are there fees associated with this new classification?
Yes. Fees for filing all necessary forms and petitions, including biometric fees, can be found in the USCIS fee schedule.

Applicants who can show they are financially unable to pay specific fees may submit an application for a fee waiver. The decision to grant such waivers lies within the sole discretion of USCIS.

Within the U.S. Department of Justice, more than 200 Immigration Judges located in 53 Immigration Courts nationwide conduct proceedings and decide individual removal cases. Removal proceedings account for approximately 80 percent of Immigration Judges' caseload. Federal rules of evidence are inapplicable in Immigration Court; thus, an Immigration Judge has greater authority to consider most kinds of evidence in deciding a case. The types of proceedings an Immigration Judge may preside over are briefly discussed below. 

 

Removal Hearings

Removal hearings are conducted to determine whether certain aliens are subject to removal from the country. The distinction between exclusion and deportation proceedings has been eliminated, and aliens subject to removal from the United States are now all placed in removal proceedings. Thus, the removal proceeding is now generally the sole procedure for determining whether an alien is inadmissible, deportable, or eligible for relief from removal.

The Department of Homeland Security (DHS), which absorbed the functions of the Immigration and Naturalization Service (INS), is responsible for commencing a removal proceeding. If the DHS alleges a violation of immigration laws, it has the discretion to "serve" the alien with a charging document, known as a Notice to Appear. This document orders the individual to appear before an Immigration Judge, and advises him or her of, among other things:

--Nature of the proceedings against the individual;
--Individual's alleged acts that violated the law;
--Individual's right to an attorney; and
--Consequences of failing to appear at scheduled hearings.
Removal proceedings generally require an Immigration Judge to make two findings: (1) a determination of the alien's removability from the United States, and (2) whether the alien is eligible for a form of relief from removal.

 

Bond Redetermination Hearings

An Immigration Judge conducts a bond redetermination hearing for aliens who are in DHS detention. The alien makes a request to the Immigration Judge to lower or eliminate the amount of the bond set by the DHS. These hearings are generally informal and are not a part of the removal proceedings. This decision can be appealed (by either the alien or by DHS) to the Board of Immigration Appeals (BIA).

 

Withholding-Only Hearing

An Immigration Judge conducts a withholding-only hearing to determine whether an alien who has been ordered removed is eligible for withholding of removal under U.S. law or the U.N. Convention against Torture (CAT).

 

Relief

Once an alien in proceedings is found to be removable, he or she, if eligible, may request one or more types of discretionary relief. This section describes some types of discretionary relief that are available during a hearing; administrative relief and judicial review after a hearing is completed are discussed below. The alien has the burden of proving that he or she is eligible for relief under the law, and usually that he or she deserves such relief as an exercise of discretion.

 

Discretionary Relief

 

Voluntary Departure

Voluntary departure is the most common form of relief from removal and may be granted by Immigration Judges, as well as the Department of Homeland Security (DHS), which absorbed the functions of the former Immigration and Naturalization Service. Voluntary departure avoids the stigma of formal removal by allowing an otherwise removable alien to depart the United States at his or her own personal expense and return to his or her home country, or another country if the individual can secure an entry there. It is important to note that aliens granted voluntary departure must depart within the time specified by the Immigration Judge. Although an Immigration Judge has the discretion to set a shorter deadline, aliens granted voluntary departure prior to the completion of removal proceedings must depart within 120 days, and those granted such relief at the conclusion of removal proceedings must depart within 60 days. In addition, in order to avoid being penalized for choosing to appeal a decision rather than depart, the Board of Immigration Appeals (BIA) usually will extend an earlier grant of voluntary departure for 30 days. As with other forms of discretionary relief, certain individuals will be found ineligible for voluntary departure, and those granted voluntary departure who fail to depart are subject to fines and a 10-year period of ineligibility for other forms of relief.

 

Cancellation of Removal

This form of discretionary relief is available to qualifying lawful permanent residents and qualifying non-permanent residents. For lawful permanent residents, cancellation of removal may be granted if the individual:

--Has been a lawful permanent resident for at least 5 years;
--Has continuously resided in the United States for at least 7 years after having been lawfully admitted; and
--Has not been convicted of an "aggravated felony," a term that is more broadly defined within immigration law than the application of the term "felony" in non-immigration settings.
Cancellation of removal for non-permanent residents may be granted if the alien:

--Has been continuously present for at least 10 years;
--Has been a person of good moral character during that time;
--Has not been convicted of an offense that would make him or her removable; and
--Demonstrates that removal would result in exceptional and extremely unusual hardship to his or her immediate family members (limited to the alien's spouse, parent, or child) who are either U.S. citizens or lawful permanent residents.
It is important to note that different standards are used in determining eligibility for victims of domestic violence.

 

Asylum

Under the Immigration and Nationality Act, the Attorney General may, in his discretion, grant asylum to an alien who qualifies as a "refugee." Generally, this requires that the asylum applicant demonstrate an inability to return to his or her home country because of past persecution or a well-founded fear of future persecution based upon his or her race, religion, nationality, membership in a particular social group, or political opinion. However, an alien may be ineligible for asylum under certain circumstances, including having failed to file an asylum application within an alien's first year of arrival in the United States, being convicted of an aggravated felony, or having been found to be a danger to national security. Similar forms of relief are Withholding of Removal and applications under the U.N. Convention against Torture (CAT).

 

Adjustment of Status

This form of discretionary relief is available to change an alien's status from a non-immigrant to a lawful permanent resident. Aliens who have been previously admitted into the United States can apply to the DHS for adjustment of status, while aliens in removal proceedings apply before an Immigration Judge. Several conditions must be met, including that the alien is admissible for permanent residence and an immigrant visa is immediately available at the time of application. Aliens who qualify for visas allowing an adjustment of status are often petitioned for by a spouse (or another family member) or an employer. Certain individuals, including criminals and aliens who fail to appear for proceedings or fail to depart after a grant of voluntary departure, and those who were ordered removed may be ineligible for adjustment of status.

 

Administrative and Judicial Relief

 

Motions to Reopen or Reconsider

An alien may move to reopen or to reconsider a previous decision by filing a timely motion with an Immigration Judge or the BIA. The central purpose of a motion to reopen is to introduce new and additional evidence that is material and that was unavailable at the original hearing. A motion to reconsider seeks a reexamination of the decision based on alleged errors of law and facts. Unless an exception applies, a party may file only one motion to reopen and one motion to reconsider. With a few exceptions, a motion to reopen proceedings must be filed within 90 days of the final removal order, while a motion to reconsider must be filed within 30 days of the date of the final order. The filing of such motions does not suspend the execution of the removal decision unless a stay is ordered by the Immigration Judge, the BIA, DHS, or the alien seeks to reopen an in absentia order (a decision made when the alien was absent at the proceeding).

 

Stay of Removal

A stay of removal prevents DHS from executing an order of removal, deportation, or exclusion. Depending on the situation, a stay of removal may be automatic or discretionary. An alien is entitled to an automatic stay of removal during the time allowed to file an appeal (unless a waiver of the right to appeal is filed), while an appeal is pending before the BIA, or while a case is before the BIA by way of certification. Except in cases involving in absentia orders, filing a motion to reopen or reconsider will not stay the execution of any decision made in a case. Similarly, filing a petition for review in Federal court also does not result in an automatic stay of a removal order. Thus, a removal order can proceed unless the alien applies for and is granted a stay of execution as a discretionary form of relief by the BIA, Immigration Judge, DHS, or a Federal court. Such a stay is temporary and is often coupled with a written motion to reopen or reconsider filed with the Immigration Court, the BIA, or an appeal to a Federal Circuit Court.

 

Administrative Appeal

The BIA is the highest administrative body with the authority to interpret Federal immigration laws. The BIA has jurisdiction to hear appeals from decisions of Immigration Judges and certain decisions of the DHS. Either an alien or DHS may appeal a decision from the Immigration Judge. In deciding cases, the BIA can dismiss or sustain the appeal, remand the case to the deciding Immigration Judge, or, in rare cases, refer the case to the Attorney General for a decision. A precedent decision by the BIA is binding on DHS and Immigration Judges throughout the country unless the Attorney General modifies or overrules the decision. With respect to the filing deadline, the appeal of an Immigration Judge's decision must be received by 30 calendar days from the date it was issued by the court.

 

Judicial Review

The Immigration and Nationality Act confers Federal courts jurisdiction over certain decisions appealed from the BIA. However, subsequent laws have substantially restricted judicial review of removal orders. An alien has 30 days from the date of a final removal decision to file a judicial appeal, which is generally filed with the Court of Appeals. The procedures and applicability of judicial review in immigration cases are complex and governed by a number of court decisions and interpretations that, in many circumstances, are not clearly resolved. For an understanding of how judicial review might apply in a specific case, qualified legal counsel should be consulted.

(From the US Department of Justice)

The US Citizenship & Immigration Services (formerly known as the INS, or Immigration and Naturalization Services) agency requires fees for many of its forms and applications. The government agency itself is responsible for setting the amount of these fees and they cannot be waived or changed by anyone other than USCIS itself. There *are* fee waivers offered by USCIS for individuals in certain situations. Your attorney can advise you on eligibility and applications for such waivers.

 

This is not the fee your attorney charges for his or her services - just as your advocate has no control over the amount of this government agency fee, he or she keeps $0 of the fee you must pay.

 

You can always check their published schedule of forms and fees yourself by visiting their website and verifying the amount the agency requires before it will accept your submission.

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