Immigration Q&A By Mark Drucker, ESQ. Whatever one’s immigration status – permanent resident, student, visitor, temporary worker, or "‘illegal," chances are at some point in their lifetime they will need to deal with the INS, now known as the BCIS (Bureau of Citizenship and Immigration Service).
As someone who has practiced Immigration Law for over 24 years in Jackson Heights., I have seen individuals who desperately need assistance for either themselves, members of their family, friends or employees. Dealing with the Immigration Service has never been an easy or pleasant experience, the laws and regulations are always changing and they often appear to be illogical. However, since Sept. 11th 2001, things have changed drastically at the BCIS and not for the better. The quality of service has deteriorated, delays have grown and denials have increased. More individuals are being removed or not allowed entry at the airport. I will briefly try to answer some of the most common questions asked during a consultation. I came to the U.S. on a visitor’s visa and have overstayed the time granted to me, what can I do to get my social security card or my permanent residence in this country?
Unfortunately, once you fall out of status, overstay your time or violate the terms of your visa, you cannot change your status without having to leave the country and apply for a new visa. To get a social security card, you must either have a visa that allows you to work in the U.S. or have an employment authorization card issued by the BCIS. An employment card, called an EAD, is only issued to certain individuals who fall within a particular class of aliens — the vast majority is those with pending applications for permanent residence. To qualify for permanent residence you either must be the beneficiary of a family-based petition or have an approved application for political asylum. Only certain family relations can help or be the beneficiary of an approved labor certification. The process of adjusting your status to permanent residence is usually under section 245 or Section 245i. This latter section only applied to petitions or applications that were filed before April 30,2001 and the individual was illegally in the US. Many individuals may not qualify for adjustment of status under the current law and they should consult with an attorney before submission of anything to the BCIS or to the Department of Labor.
Will Section 245 (i) be extended or restored in order to allow new applications for change of status?
The feeling amongst immigration attorneys is that there will be some change in the law within the next year that will restore Section 245 (i). There are a number of professional groups lobbying for said change, including the American Immigration Lawyers Association. Next year is a presidential election and usually there is some legislation passed that is helpful to the immigrant community. Also, the BCIS has budgetary problems and restoring Section 245 (i) would generate a tremendous amount of additional revenue — each applicant over the age of 17 must pay $1,000 in addition to the normal filing fees.
I am awaiting my interview for my permanent residence and I just received a call from my family in Peru that my mother has suffered a heart attack. I need to go home immediately. What can I do to get permission to leave?
If you can document the emergency with a telegram from a doctor or hospital in Peru and have a copy of your birth certificate with English translation, you can apply in person at 26 Federal Plaza in Manhattan for advance parole. You should arrive there by 8 a.m. and go directly to room 8-100 with your passport, two green-card type photos and the above documents. If the officer agrees to process your application, you must go to the cashier and pay a fee of $110.00. and return to room 8-100 and wait for the issuance of the parole document-which should be the same day. However there is a major caveat for those who have been living in the US illegally for more than six months prior to submitting there application for adjustment of status. Leaving the US with advance parole will definitely affect your adjustment application after your return. You might need a special waiver or might not be eligible for permanent residence due to The Illegal Immigration Reform and Immigrant Responsibility Act of 1996. It would be wise to speak with an attorney if you fall within this situation.
I was arrested and pleaded guilty to a minor crime five years ago. Will this affect my application for naturalization?
The law states that an applicant for citizenship must be a person of good moral character for a certain period of time, usually five years. If you are on probation during the 5 year period, the BCIS takes the position that you are not eligible for naturalization. Even though you may have received a conditional discharge, you could face serious consequences if the crime was a felony that involved theft or violence. Applying for naturalization can result in an investigation of your status as a permanent resident. I have had clients retain me to represent them in removal proceedings before an Immigration Judge because of information that they provided on their application for naturalization. In particular, be very careful if you have had a narcotics conviction, even if it was a very long time ago,
I came to the US in May, 1993 as a visitor and have never left this country. I have two children born in the U.S. and I am divorced from my husband. I have been continuously employed and have been filing my tax returns every year. I heard about a 10-year rule that will allow me to get my permanent residence. Is there a way for me to apply for resident status?
Many individuals are under the mistaken belief that there is still some form of amnesty for people who are living in the US for long periods of time. Unfortunately, this is just wishful thinking. There is no amnesty and there does not appear to be one on the horizon. However, there is a section of the Immigration Act that allows for one to apply for permanent resident status in a removal proceeding before an Immigration Judge. It is called cancellation of removal; adjustment of status. It requires the individual to meet very stringent requirements. The most difficult being proof that your removal from the U.S. would result in "exceptional and extremely unusual hardship" to either or both of your children. The ages and medical condition of the children are very relevant to the case. This section of law should only be used in rare cases where you have a very strong case. It would be advisable to speak with an immigration attorney to get his opinion prior to taking any action.
I am in the US legally as a visitor and would now like to attend College for the spring term. What is necessary to get a student visa and can I change my status while here as a visitor?
If you are in the US legally and can establish that you did not enter the country with a preconceived notion to attend school, you can apply to the BCIS for a change of status. You will need Form I-20A from the college. It must be a school that is recognized and authorized to issue I-20s. It should contain all the necessary information about the program and the costs, and should be executed by an official of the school. You will also need an affidavit of support from a family member or friend who can establish that all of your expenses will be paid. A student cannot work during the first year of school. You will also need to submit with the above documents an application for a change of status with an explanation why you want to go to school. The filing fee is $140.00. If the BCIS approves your application you will be sent a new I-94 showing that you are in student, (F-1) status for the duration of your program (D/S). Mark Drucker is an Immigration lawyer based in Jackson Heights. He can be reached at 718-458-1489.
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