The purpose of this summary is to inform in a general manner rather than to offer information about individual cases. It would not be possible in a short summary of this nature to include all possible themes relating to this topic. We remind you that there is no substitute for the advice of a lawyer for individual cases.
I. Part One: Immigration Categories
Legal immigration to the United States can be made in any of the following categories:
• Immigration through family
A. Family Petitions
Relatives who can submit papers on your behalf are:
1. Immediate Family: There is no limit to the number of immigrants in the family unit who may apply.
• The spouse of a U.S. citizen.
There is no limitation on the number visas issued per year in this category. This category consists of the parents of US Citizens, the spouses of US Citizens and the unmarried children of US Citizens. Children are further defined as being less than twenty-one years of age at the time of adjustment to lawful permanent resident.
2. Categories of Special Preference: The law places a limit on the number of immigrants awarded this type of visa. There are currently long waiting periods for many of the relative (preference) categories that vary dramatically depending on the country of origin and family relationship. These long delays are the result of a yearly quota set for each of the categories and the large numbers of petitions already pending.
• The first preference category is made
up of the “unmarried sons and daughters of U.S. Citizens.” This group is
made up of the children of U.S. Citizens who have reached the age of
3. Immigration Process if you have a Relative The standard immigration process for relatives is described below. If you are located within the U.S., you may qualify to continue the process to change your status through one of the procedures mentioned in this summary.
To petition for a relative visa, the petitioner must file an I-130 petition with the Bureau of Citizenship and Immigration Services in the Department of Homeland Security for approval. Upon approval, the Bureau of Citizenship and Immigration Services sends the package to the National Visa Center (NVC), where it enters the jurisdiction of the U.S. Department of State. The NVC forwards the package to the U.S. Consulate in the country of the intended visa recipient.
The U.S. Consulate sets up a file on the intended visa recipient. Having accomplished that, a package of instructions and forms are sent out to the intended recipient, who completes the forms and returns them to the consulate, along with the necessary documents, such as birth and marriage certificates. All documents should be translated into English. After updating the file, the consulate schedules a visa interview and sends more forms, instructions (with interview date) to the intended visa recipient. Among other things, the instructions include details about obtaining a medical exam.
• At the visa interview, the visa is
issued upon satisfaction of the consular adjudicator. The approval of
the Citizenship Office does not indicate that one has obtained legal
status, nor does it protect one in the case that he is arrested, nor is
it a work permit.
B. Work Visas
There are several different categories of work visas, but let us consider the most important elements in this process. As a general rule, qualified people with a university diploma or a specialized position may immigrate if they have a job offer in the U.S. It is not sufficient that your employer wishes to help you immigrate. You and your employer must complete a document called the Immigrant Petition for Alien Worker (I-140).
The purpose of the document is to prove that there are no qualified employees available in the U.S. that might fill this position. It is probable that the employer may have to announce the opening and interview all the applicants.
Step 1: In most work-related categories, the employer should present a request for work certification (Form ETA 750) with the Alien Labor Certification (ALC) Section of the Workforce Commission in his state. This form should include a detailed description of the position as well as the minimum qualifications required. You should fill out the portion of Form ETA 750 that summarizes your experience and qualifications and present the documents that support this information. The job requirements must be legitimate, which means that you may not be the sole qualified person. The salary must reflect the necessary expertise required to fulfill the position.
Step 2: Your potential employer should
present Form I-140 at the nearest INS office. Accompanying the document
must be certificate provided by the state’s Work Force office as well as
your supporting documents. All papers written in a foreign language must
be translated to English. You must indicate on the forms whether you
plan to return to your country of origin while the papers are being
processed, or if you wish to change your immigration status while you
remain in the U.S. In order to continue with your case, the petition
must be approved by the Bureau of Citizenship and Immigration Services (BCIS).
Step 3: If the Bureau of Citizenship and Immigration Services accepts your request, you must report to the regional office of the BCIS or await notification from the U.S. consulate that you indicated when you filed your I-140 form.
Step 4: When the U.S. Consulate receives your case and when your ‘priority date’ is near, that consulate will send you another packet of documents which you must fill out and return. The consulate will investigate your case and advise you of one last appointment. If all is in order, during this final appointment you will receive your legal residency visa and you may return to the U.S. legally.
Nevertheless, it is possible that the consulate may not approve your visa if it indicates some valid reason to reject your case. As the above-mentioned process may take several years, it is important that you inform the consulate about any changes in your address so that correspondence relating to your case will not go astray.
C. Political Asylum
The question of political asylum is very complicated. Unfortunately, there are lawyers who accept cases on the basis of political asylum without explaining that this category is very restricted and very few cases are admitted as political asylees under this category.
Individuals who are unable or unwilling to return to their home countries because they fear that they would be harmed on account of their race, religion, nationality (ethnicity), political opinion, or membership in a particular social group may apply for political asylum. Persons who are granted political asylum are eligible to adjust their status to permanent residency after one year of physical presence in the United States.
The following problems relating to your
country of origin are NOT accepted as justification for political
If your application for political asylum is not accepted, which is very possible, they will send you a date for a court hearing known as the Removal Proceeding. It is important to remember that only a very select number of situations lend themselves to this category of immigration.
D. The Visa Lottery
Each year, 50,000 immigrant visas are made available through a lottery to people who come from countries with low rates of immigration to the United States. The purpose of the Visa Lottery is to diversify the flow of nationalities immigrating to this country. Each year the Department of State determines which countries have the lowest number of people wishing to immigrate to the U.S. This list of countries may vary from one year to another. As a general rule, European and African countries are nearly always excluded. Neither Mexico, China, the Philippines nor India have appeared on this list and it is doubtful that they will ever qualify.
E. Length of Time Living in This Country
Currently, there is no law that permits one to legalize his migratory status on the basis of having already spent seven or ten or even more years living illegally in the U.S
In accordance with the previous law, in a few very exceptional cases, if one has lived here continually for seven or more years and also can demonstrate that his deportation would result in a critical damage to himself or his family, he may ask the judge for a ‘Cancellation of Removal’.
This is an immigration law that allows people who have already been detained and are in process of deportation to appeal to a judge for a waiver of deportation. In order to quality for this category, the foreign national must prove:
1) that he has lived here continuously
for ten years;
t is very risky to make this application because the applicant must turn himself in voluntarily to the INS and appear before an immigration judge. Consequently, this step should not be considered unless the individual is already under deportation orders. You should not be misled by ‘notarios’, immigration counselors or unscrupulous lawyers who advise you to report to the INS to ask for your legalization of status under this category. If the judge does not approve of your request, as happens in the great majority of cases, you may be deported. It is recommended that you only apply under this option if you are already being held by the INS or if you are under deportation proceedings
Part Two: Change of Migratory Status within the U.S.
U.S. immigration law assumes that most immigrants will apply and wait in their country of origin. In these cases, the application is presented in that country, and the immigrant’s appointment will be made with the appropriate consulate in order to determine if he qualifies for a residency visa, in accordance with the categories mentioned above.
Nevertheless, in many cases the foreign national is already residing within the U.S., either with a nonimmigrant visa, or under undocumented status. In certain cases, he will not be required to return to his country of origin in order to file his immigration papers.
A. Normal cases
As a general rule, there are five
requirements to quality for the change of immigration status:
Part Three: Reasons for Ineligibility
In addition to qualifying in one of the previously described categories, foreign nationals who desire to legalize their immigration status must not meet any of the grounds of ineligibility. The visa for legal residence may be denied if any of the following conditions exist:
A. Reasons for Ineligibility
• A criminal record. Among the crimes
that may make you ineligible for a visa are:
• Prior immigration record, such as:
Nevertheless, if the sponsoring relative does not have sufficient funds as required by the law, it is possible to present a document of support signed by a friend or another family member.
If you find yourself in one of the categories that render you inadmissible, in a limited number of cases you may request a ‘pardon’. You may be eligible for a pardon in the following situations:
• To have received the approval of your
request for a visa as a legal resident.
If a U.S. consular official determines that you should request a pardon, you should fill out the forms and pay the fees to that official If you request a ‘pardon’, it is probable that you will have to wait many months while your request is processed. During this period of time, you may not enter the United States.
Pardons are forbidden in the following cases,and these conditions may negate any possibility of you obtaining your legal residence:
• Having attempted to enter the U.S.
under the pretenses of being a U.S. citizen when you were actually a
IV. Part Four: Deportation
A. Your Rights If Arrested
In you are arrested within the U.S., either at your place of employment or as you travel within the country, you have the following rights:
• To call a lawyer;
In the following instances, is not recommended to sign the forms for Voluntary Exit unless you have first consulted with an immigration lawyer:
• If your immigration documents are
currently being processed
If any of the previous conditions exists,
it is not recommended that you sign the Voluntary Exit documents.
Instead, you may ask that your case be referred to an immigration judge
for a Deportation Hearing. However, you run the risk that he will order
your deportation and that you will immediately be detained.
B. Grounds for Deportation
Several grounds for deportation exist. As a general rule, these conditions apply to permanent residents as well as to undocumented individuals. The following are some of the most important reasons for deportation:
• Illegal entry: Obviously, having
entered illegally is a reason for deportation. It does not matter how
many years ago the individual entered this country;
The following factors are considered in
C. Criminal Records
Criminal records are a frequent cause of
• The individual’s immigration status:
Among the records that are considered as
aggravated crimes are:
In accordance with the law, the following are not considered to be aggravated crimes:
1. Driving while intoxicated (DUI),
whether or not convicted of a felony in accordance to the law.
• When the crime occurred:
If the crime occurred during the first five years after immigrating, there are fewer grounds for defense. It is occurred after that period of time, it is possible that the legal resident may avoid being deported.
In 1996 the law expanded the list of crimes that may be grounds for deportation. Additionally, certain records that in the past were not considered grounds for deportation now may lead to deportation, even retroactively. Nevertheless, according to a ruling of the Supreme Court, if you find yourself in deportation proceedings because of a crime perpetuated before 1996, you may qualify for a pardon, as will be expanded upon in the next section.
D. Rights during a Deportation Hearing
In a deportation hearing, the following are the rights of the immigrant:
• To be represented by a lawyer.
Nevertheless, as there are public defenders provided in immigration
cases, you will need to hire a lawyer.
E. Defense and Appeal in the Deportation Hearing
Although you may be under deportation orders, your expulsion from the country is not automatic. Among the courses of appeal and defense that you may request are the following:
1. Bonds: If you request your hearing before an immigration judge, in order to avoid being detained during the hearing, you may request the issuance of a bond. The minimum bond in such cases is $l,500. If you have a criminal record, it is probable that the bond will not be permitted. The judge may reduce the bond’s value or eliminate it completely, releasing you under your word. In this case, you must request a ‘bond hearing’, which may take a week, during which time you will remain in jail.
2. Voluntary Exit: In the moment of your detention, or later in your deportation hearing, you may request Voluntary Exit. In some cases, this may make your repatriation to your country of origin more rapid. Nevertheless, if you have been previously arrested, your request may be denied. The new law limits the time the judge may give you before you must leave the country under Voluntary Exit to a maximum of 120 days.
3. Termination of Process: In certain cases, you may ask that the judge terminate the case when the evidence for your deportation presented by the Bureau of Immigration and Customs Enforcement (ICE) is insufficient.
4. Pardon according to section 212(c): In
accordance with the decision of the Supreme Court in the case of St.
Cyr, foreign nationals that are declared guilty of crimes that are now
considered aggravated crimes may ask for a pardon if they meet the
5. Cancellation of Removal: If a basis for deportation exists, in some cases the foreign national may avoid deportation if he qualifies for a condition known as Cancellation of Removal’. If the judge permits this, the immigrant will be considered a legal resident of the U.S. Basically, there are three groups of immigrants who may qualify for cancellation of deportation.
a. Legal residents: The legal resident may qualify for this category if he has been a permanent resident for five years and has been in this country for seven years, as long as he was not convicted of an offense that is considered as an aggravated crime.
6. Undocumented: The undocumented
foreigner may qualify for this condition if he can prove that
Victims of domestic violence: The undocumented person who is the spouse of a citizen of the U.S. or of a legal resident and that has been the victim of domestic violence may ask for a Cancellation of Deportation if he or she can prove:
a. three years continuously living in the
7. Political Asylum: In a deportation interview, you may ask for the condition of political asylum as explained above.
8. Appeals: If your petition or application is denied and a deportation warrant has been issued, your response is limited to Administrative Appeal presented before the corresponding federal court.
9. To re-open a deportation case: In
certain cases, you may ask for your deportation case to be reopened. You
should consult a lawyer if you find yourself in one of the following
F. Deportation to your Port of Entry: Summary Removal
In accordance with the new law, if you try to enter with false documents or if you falsely say you are a U.S. citizen, the INS will detain you and apply a new process called Summary Removal. Unless you qualify for political asylum, you will not have the right to a hearing before an immigration judge nor to consult with a lawyer.
If you are processed in this manner, this will remain in your record and will disqualify you for a visa, local border passes or to legalize your situation until you have spent five years outside of the U.S. Committing this crime a second time can disqualify you for 20 years, and the third time brings this sanction for your lifetime. If you try to enter claiming to be a U.S. citizen when you are not, you may be disqualified to receive an immigration visa for the remainder of your life.
Part Five: Deception in Immigration Procedures
Unfortunately, considerable deception exists with relation to immigration matters. Mexico’s consular network has detected and reported several cases of deception on the part of immigration lawyers and assistants. To avoid being deceived, the Mexican Consulate recommends that you exercise considerable caution with people:
• Who offer to process your case under
the areas of:
Part Six: Common Questions
A. Work Permits
Many people do not wish to immigrate permanently to the U.S., but rather only wish to obtain a legal work permit. Unfortunately, as a general rule, this is only possible if your employer is willing to help you legalize your status. Except in a few very exceptional cases, the only people who are awarded temporary work permits are those who present to the INS office a request for ‘Adjustment of Status’ because they are close relatives (husbands, wives, children) of U.S. citizens or those who are in other categories but are very close to the date of their immigration appointment.
Some people that are under deportation orders will be able to present a request for a work permit. Nevertheless, we do not recommend that you turn yourself into the INS in order to request this permit. While it may be offered to you for use during your pre-deportation period, but a subsequently you will be required to leave the country. Do not be deceived by notarios or unscrupulous lawyers who advise you to turn yourself into the INS in order to request a work permit.
The fact that you have applied to be a legal resident of this country does not give you any right to remain here or to work in the U.S. Nor does it include permission to return after you have left the country.
B. Entry and Exit Visas
Many people who do not qualify as an immigrant according to the rules outlined above may ask if they can obtain a multiple re-entry permit that will allow them to enter and exit the country frequently.
Unfortunately, in most cases, this permission is denied. The fact that you have applied to be a legal resident of this country does not give you any right to remain here or to work in the U.S Nor can you obtain permission to return after you have left the country. On the other hand, if you have a pending immigration case, leaving the country may negatively affect your chances of legalizing your residency in the future.
C. How long will it take to process my case?
The length of time depends on the category through which you are requesting your visa. There is no numerical limit to the number of people who can ask for legal immigration based on the fact that they have a U.S. citizen spouse, parent, or minor child. This sort of case requires less time, but nevertheless it may take up to 18 months, due to the heavy case load being processed.
For all other foreign nationals, the law limits the number of visas that may be awarded each year, according to category. For this reason, waiting lists are formed according to the date the application was filed, its category, and the nationality of the applicant.
In accordance with the new law, after April 1, 1997 the length of time you have spent in the U.S. with illegal status as you await your immigration appointment may count as part of the time you are out of status and may disqualify you for a visa unless you qualify for under section 245 (i).