Rights and Planning Guide: Part 3 Immigration 101

Below please find a list of some immigration benefits for which you may be eligible. Find an immigration attorney or DOJ representative to help you find out if you indeed qualify for a green card, work permit or visa, or protect yourself from deportation. If you think you qualify for one of the following benefits, talk to your immigration attorney or DOJ representative FIRST. Do not attempt to apply for any of these benefits by yourself as you may risk being placed in removal proceedings.

1. Family Members’ Petition. Under current immigration law, only certain Legal Permanent Resident and U.S. Citizen relatives may petition for their undocumented immigrant relative. The undocumented relative may have to consular process in their home country, depending on how they entered the U.S. Also, that undocumented relative may trigger a 3-year, 10-year or permenent bar to re-entering the U.S. when they leave to attend their consular interview. While there are waivers to the time bars available for certain relatives of U.S. citizens or Legal Permanent Residents, it is important to consult an experienced immigration attorney to analyze the likelihood of the grant of a waiver.

2. Cancellation of Removal. Cancellation of removal not only “cancels” or stops your removal proceedings, but it may also lead to lawful permanent residency in some circumstances. Cancellation of removal may be available to Legal Permanent Residents and Undocumented Immigrants:

a. A Legal Permanent Resident in removal proceedings may qualify for cancellation of removal if they have: i. Been a permanent resident for more than 5 years; ii. Have 7 years of continuous residence in the U.S.; and iii. Good moral character.

b. An Undocumented person in removal proceedings may qualify for cancellation of removal if they have: i. 10 years of continuous residence in the U.S.; ii. Good moral character; and iii. A qualifying relative.

3. Asylum. Asylum is a form of relief for individuals that fear persecution in their home country because their race, religion, nationality, membership in a particular social group, or political opinion. You must apply for asylum within the first year of your last arrival to the U.S. If you did not apply in your first year in the U.S., you will have additional barriers to overcome in order to qualify for asylum. a. NOTE: Asylum cases are extremely difficult to win. Due to the immigration courts’ heavy case load, asylum cases are taking a long time to be processed. Unfortunately, some unethical attorneys have used this backlog to their advantage by promising clients a work permit in 6 months by applying for asylum, even when they know the case has no merit. Years later, the asylum applicant who received a work permit has to fight their case in court because their application was denied. Due to the application lacking merit, the asylum applicant is eventually ordered deported.

4. Violence Against Women Act’s (VAWA) Battered Spouses, Children, & Parents. Undocumented or documented spouses, parents or children of a U.S. citizen or Legal Permanent Resident who have been victims of abuse at the hands of their U.S. citizen spouse, parent, or child can apply for an immigrant visa petition (a green card).

5. U-Visa. Undocumented immigrants can apply for this visa (work permit) if they have suffered from a qualifying crime in the U.S. and are willing or have been able to assist law enforcement and government officials in the investigation and/or prosecution of the criminal activity. After 3 years with the U-visa, the U-visa recipient can apply for a green card.

6. Special Immigrant Juvenile Status (SIJS). SIJS is available to undocumented children who have been abused, abandoned or neglected by one or both of their parents and whose best interest is to remain in the U.S. After a state court finds the aforementioned, the child may apply for special immigrant juvenile status and, thereafter, apply for a green card.

a. NOTE: The state court must make the findings of abuse, abandonment or neglect and that it is not in the child’s best interest to return to their home country BEFORE the child reaches the age of majority (19 years old in Nebraska, 18 years old in Iowa).

7. Deferred Action for early Childhood Arrivals (DACA). DACA is available to undocumented immigrants who came to the U.S. before they were 16 years old, have continuously resided in the U.S. since 2007, are currently enrolled or have graduated from school and have good moral character. a. DACA still exists as of February 5, 2017. However, because DACA was implemented as an executive order during the Obama administration, it can be repealed at any time as the Trump administration has previously vowed to end DACA. A draft DACA, DAPA, and Enforcement Priorities Executive Order ending DACA has been leaked to the media, but has not yet been signed. Stay up to date on news regarding DACA.

DACA FAQs:

i. Will I be deported? There are approximately 700,000 DACA recipients. It would be very difficult and costly to deport this amount of people, but it is a possibility. Consult with an immigration attorney or DOJ representative to search for other immigration benefits you may qualify for.

ii. I haven’t applied for DACA. Should I apply now? Should I renew my DACA? Can I take advance parole? At this time, it is not advisable to submit applications for initial DACA or advanced parole due to the heightened risks. Additionally, you should consult with an immigration attorney or DOJ representative before applying for to renew your DACA.

8. Citizenship. If you are a U.S. citizen, you cannot be deported unless your citizenship was obtained as the result of fraud. There are multiple ways you can qualify for citizenship, the most common way to become a citizen, is by naturalization. Fee waivers are available for citizenship applications. There are 4 ways you can become or maybe already are a U.S. citizen:

a. By Birth. If you are born in the U.S., you are a U.S. citizen as set forth by the Constitution of the United States.

b. By Acquisition. You may already be a U.S. citizen if you were born outside the U.S. to one or more U.S. citizen parent.

c. By Derivation. You may already be a U.S. citizen if you have at least one U.S. citizen parent by birth or naturalization, are under age 18; have a green card, and you are in the legal and physical custody of your U.S. citizen parent.

d. By Naturalization. Generally, to apply for U.S. citizenship, you must:

  • Have been a lawful permanent resident for 3-5 years, depending on how you were able to obtain your LPR status;

  • Have good moral character; and

  • Speak, read and write proficient English, unless you fall under a disability or age exception to the civics and English exam.


NOTE: ALWAYS CONSULT WITH AN ATTORNEY BEFORE APPLYING FOR CITIZENSHIP. A MISTAKE IN YOUR PAST RESIDENCY APPLICATION OR YOUR CURRENT CITIZENSHIP APPLICATION, OR YOUR CRIMINAL RECORD CAN CAUSE YOU TO BE PLACED IN REMOVAL PROCEEDINGS.

Thanks to Jane Shanahan, who continues her grandmother’s Jesusita Baros’ work of advocating for immigrants in her community.
nilah.org

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