Immigration Law

Asylum is a discretionary benefit accorded to certain persons in the United States who demonstrate that they are unable or unwilling to return to their country on account of persecution or a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion.

One year after the receipt of asylum status, asylees may apply for lawful permanent residence.

The REAL ID Act requires asylum applicants to demonstrate that one of the enumerated grounds was or will be "at least one central reason" for their persecution, and allows immigration judges to require credible asylum and withholding applicants to obtain corroborating evidence "unless the applicant does not have the evidence and cannot reasonably obtain the evidence."  

A discretionary remedy for a lawful permanent resident who has been a permanent resident for at least five years and has resided continuously in the United States for at least seven years, after having been admitted in any status, who has not been convicted of an aggravated felony.

Cancellation of removal is also available to persons who are not permanent residents and who have been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of their application or the date of a notice to appear, if the person has been of good moral character during such period, has not been convicted of certain offenses, and establishes that removal would result in exceptional and extremely unusual hardship to their U.S. citizen or permanent resident spouse, parent, or child. 8 USC § 1229b; INA § 240A.

The applicant can be absent from the United States for up to 180 days during the 10 years and continue to maintain "physical presence." 

Removal is the procedure used to eject persons who are seeking admission as well as those who have been admitted to the United States.

Prior to the enactment of IIRAIRA in 1996, the terms "deportation" and "exclusion" were used. Relief from Removal refers to any number of immigration benefits that allow a person otherwise subject to removal to avoid formal removal from the United States.

Common forms of relief from removal include: cancellation of removal for nonpermanent residents, adjustment of status, and voluntary departure.

A remedy available to persons who establish that their lives or freedom would be threatened if deported to their home country on account of race, religion, nationality, membership in a particular social group, or political opinion.

Withholding of removal does not confer the right to stay in the United States; a person granted withholding of removal may be removed to any country, other than their home country, that is willing to accept them. Also known as "restriction on removal."

Certain grounds of of inadmissibility, as well as the two-year home residency requirement for an exchange visitor, can be waived under certain circumstances.

These waivers remove an impediment to obtaining a visa or status. USCIS also can grant a waiver of the labor certification and job offer requirement to professionals with advance degrees and aliens of exceptional ability if it is deemed to be in the national interest.

Under criminal law, robbery is defined as the unlawful stealing of or the attempt at stealing someone else’s property by force. Robbery also includes any threats made to use force in order to steal property, putting victims in a state of fear.

Under the New York Penal Code, robbery charges vary in severity, depending on the circumstances, the severity of the situation, and the number of people involved in the crime.

• Robbery in the first degree: when a person forcibly steals another’s property, and in the process, causes serious physical injury to another person not involved in the crime. This charge also applies to situations where one is armed with a deadly weapon, uses or threatens the use of a dangerous instrument or weapon, or displays a firearm.
• Robbery in the second degree: when a person forcibly steals another’s property that is classified as a motor vehicle, or is aided in the act by another person. This charge also applies to situations where, in the course of committing the crime, one causes physical injury to someone who is not a participant in the crime or displays a firearm.
• Robbery in the third degree: when a person forcibly steals another’s property.

Presence in the United States after the expiration of the authorized period of stay, or presence in the United States without having been admitted or paroled. The period of authorized stay, usually noted on Form I-94 or I-94W, must end on a date certain.

Violation of status (e.g., the F-1 student who works without authorization) does not constitute unlawful presence. Depending on the period of unlawful presence, a person may be barred from readmission for a period of three or ten years.

A foreign citizen seeking to live permanently in the United States requires an immigrant visa. To be eligible to apply for an immigrant visa, a foreign citizen must be sponsored by an immediate relative who is at least 21 years of age and is either a U.S. citizen or U.S. lawful permanent resident.

There are two types of family-based immigrant visas:

1. Immediate Relative—these visas are based on a close family relationship with a U.S. citizen, such as a spouse, child or parent. The number of immigrants in these categories is not limited each fiscal year; and
2. Family Preference—these visas are for specific, more distant, family relationships with a U.S. citizen and some specified relationships with a lawful permanent resident.

The number of immigrants in these categories is limited each fiscal year. U.S. citizens can file an immigrant visa petition for their: spouse; son or daughter; parent; and brother or sister. U.S. lawful permanent residents can only file an immigrant visa petition for their: spouse and unmarried son or daughter. 

If you are in the United States and need the protection of a juvenile court because you have been abused, abandoned or neglected by a parent, you may be eligible for Special Immigrant Juvenile (SIJ) classification. If SIJ classification is granted, you may qualify for lawful permanent residency.

You must:

1. Be under 21 years of age (note that some juvenile courts may only be able to issue a juvenile court order if you are under 18 years of age).
2. Be currently living in the United States.
3. Be unmarried.
4. Have a valid juvenile court order issued by a state court in the United States which finds that: you are dependent on the court, or in the custody of a state agency or department or an individual or entity appointed by the court; you cannot be reunified with one or both of your parents because of any of the following: abuse, abandonment, neglect, or a similar basis under state law and it is not in your best interests to return to the country of nationality or last habitual residence of you or your parents.
5. Be eligible for USCIS consent (you must have sought the juvenile court order to obtain relief from abuse, neglect, abandonment or a similar basis under state law and not primarily to obtain an immigrant benefit).
6. Have written consent from the Department of Health and Human Services (HHS)/Office of Refugee Resettlement (ORR) to the court's jurisdiction if: you are currently in the custody of HHS, and the juvenile court order also changes your custody status or placement.

Deferred Action is extraordinary relief, in the form of prosecutorial discretion, where the U.S. government takes no action to remove a person although the person may be technically inadmissible or deportable. The relief may be granted in cases with compelling humanitarian factors. A person under deferred action is considered to be lawfully present in the United States for purposes of applying for certain public benefits.

On June 15, 2012, the Department of Homeland Security formally announced that it will offer deferred action to "DREAMers," those who qualify for relief under the proposed Development, Relief and Education of Alien Minors Act (DREAM).

Eligible individuals must:

1. Have arrived in the United States when they were under the age of 16.
2. Have continuously resided in the United States for at least five years prior to June 15, 2012, and have been present in the United States on June 15, 2012.
3. Currently be in school, have graduated from high school, have a GED, or be an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces.
4. Not have been convicted of a felony offense, a "significant misdemeanor offense," three or more nonsignificant misdemeanors, or otherwise pose a threat to national security or public safety.
5. Have been under 31 years old on June 15, 2012.

In 1994, as part of a comprehensive crime statute, Congress authorized certain abused immigrants to petition on their own behalf. The provision applies to those who have been battered, or subjected to "extreme cruelty," by their United States citizen or LPR spouses. The 1994 law also required the self-petitioner to show good moral character, prior residence in the United States with the spouse, good faith in entering into the marriage, and extreme hardship to the petitioner or the petitioner's child. It established analogous protections for noncitizen children who have been battered, or subjected to extreme cruelty, by their citizen or LPR parents (or parents' spouses). The Victims of Trafficking and Violence Prevention Act of 2000 repealed the extreme hardship requirement and provided a discretion to waive the good moral character requirement in certain instances in which the otherwise disqualifying behavior was connected to the original violence.

A visa is an official endorsement, obtained from an overseas U.S. consul, certifying that the bearer has been examined and is permitted to seek admission to the United States at a designated port of entry. There are both immigrant visas and nonimmigrant visas. A visa does not grant the bearer the right to enter the United States; it merely allows one to seek admission at a port of entry. 

The U-Visa is for the individual who has been a victim of serious violent crimes (including domestic violence), and has suffered "substantial physical or mental abuse as a result." To qualify for this visa, the victim must have been helpful, currently be helpful, or likely be helpful in the future to a federal, state, or local law enforcement official. The visa is limited to 10,000 issued per year, and there are provisions allowing the victim to adjust status to permanent residency after three years.

The T-Visa was included in the implementing legislation to the Convention Against Torture. The statute provides up to 5,000 visas for persons who have been the subjects of severe trafficking, which is defined as "sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, in which the person induced to perform such act has not attained 18 years of age" or "the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery." The T-visa is for victims who agree to assist in prosecutions or are under the age of 18 and would suffer "extreme hardship involving unusual and severe harm upon removal." The T visa is for three years, and the individual may seek adjustment of status to that of an LPR if he or she has maintained status, been of good moral character, and complied with reasonable requests for assistance in prosecuting trafficking. 

There is no single document in U.S. immigration law that is a "work permit." Citizens, nationals, and lawful permanent residents are automatically authorized to be employed in the United States. Certain nonimmigrant visa categories include, as an incident of status, employment authorization either with or without limitation to a particular employer or after application and approval by USCIS. Virtually all employment authorization for nonimmigrants or undocumented aliens (where authorized) is limited as to time, and most is limited as to the nature of employer and employment. Other aliens physically present in the United States may have the right to apply for an Employment Authorization Document.  

A document signifying that a consular officer believes that the alien to whom the visa was issued is eligible to apply for admission in a particular nonimmigrant category. However, a visa does not guarantee admission. An immigration inspector can deny entry if he or she believes that the applicant for admission is not admissible under the category for which the visa was issued.

The period of validity of a visa establishes the time during which the alien may apply for admission at a U.S. port of entry. Visas may be valid for as few as 30 days or for up to 10 years and may be limited to a single entry or may be valid for multiple entries during the period of validity. The visa's period of validity is not the same as the authorized period of stay in the United States.

The authorized period of stay, which is indicated on a small white card—Form I-94, Arrival-Departure Record—that is stapled into the passport, may be less than the visa's period of validity, or it may be much longer (typically when single-entry visas are valid only for a limited period of time).

It is important to understand that it is the Form I-94, and not the visa, that determines a nonimmigrant's status and the visa's validity as to time and purpose. An alien is not out of status if he or she was properly admitted pursuant to a valid visa and the visa has expired, provided the person is still within the authorized period of stay indicated on Form I-94.

The K-1 visas are for fiancé(e)s of U.S. citizens who are entering for the sole purpose of getting married within 90 days of their admission.

Minor children of the K-1 visa-holder are eligible as derivatives for admission under the K-2 visa.

Individuals must establish that they have the legal capacity to marry, that they met the U.S. citizen within two years of filing the petition, and that they are otherwise admissible or eligible for a waiver.

The K-3 visa is a relatively new visa fashioned to get around the procedural difficulties of the immigrant visa process. It is designed for people already married to U.S. citizens, when the U.S. citizen spouse has filed an immediate-relative immigrant petition, and the beneficiary seeks admission while awaiting its approval. The children of a K-3 are issued K-4 visas; K-3 and K-4 visa-holders are admitted for two years.

A person who enters under a K visa is not eligible to change to another nonimmigrant status.

An expression that refers to the document carried by a lawful permanent resident, which provides proof of his or her status. The document is officially referred to as an "I-551 (Alien Registration Receipt Card or Permanent Resident Card). The card is no longer green.

A lawful permanent resident (LPR) is a person accorded the benefit of being able to reside in the United States on a permanent basis. Such a person may engage in employment but may not vote in U.S. elections. LPR status is the status gained by a person who is admitted to the United States with an immigrant visa or who has been granted adjustment of status.

Lawful permanent residence also may be obtained after a person has been granted asylum or been admitted to the United States as a refugee. In addition, a person who has been in the United States for more than 10 years and is able to establish the requisite degree of hardship may be granted permanent residency following the "cancellation" of removal proceedings. LPR status may be taken away for the commission of certain acts that can result in deportability or inadmissibility, or lost through "abandonment."

An LPR is also called a legal permanent resident or green-card holder.