Arizona Immigration Law S.B. 1070

August 13, 2011

The story of Camino takes place during a future time when the controversial Arizona Immigration Law S.B. 1070 has officially passed. FindLaw provides an excellent summary of this bill that captured the attention of the entire nation:

FindLaw: Arizona Immigration Law S.B. 1070


Know Your Rights: Permanent Resident Freedoms

August 13, 2011

While it is often assumed that non-citizens do not possess legal rights in the United States, it is important to note that permanent residents who have not fully completed the naturalization process are granted certain freedoms.  Here are some of these rights of permanent residents, according to FindLaw:

As a permanent resident, you have the right to:

  • Live and work permanently anywhere in the U.S.
  • Apply to become a U.S. citizen once you are eligible.
  • Request a visa for your husband or wife and unmarried children to live in the U.S.
  • Get Social Security, Supplemental Security Income, and Medicare benefits, if you are eligible.
  • Own property in the U.S.
  • Apply for a driver’s license in your state or territory.
  • Leave and return to the U.S. under certain conditions.
  • Attend public school and college.
  • Join certain branches of the U.S. Armed Forces.
  • Purchase or own a firearm, as long as there are no state or local restrictions saying you can’t.

How to Become Legal: Deportation and Relief

August 13, 2011

The number of U.S. deportations has hit its record number this year.  Here is more information on the classes of deportable immigrants, the removal process, and steps that one can take to seek relief from deportation, according to FindLaw:

Classes of Deportable Immigrants

Any immigrant that is in the United States may be subject to deportation or removal if he or she:

  • Is an inadmissible alien according to immigration laws in effect at the time of entry to the U.S. or adjustment of nonimmigrant status
  • Is present in the U.S. in violation of the Immigration and Nationality Act or any other U.S. law
  • Violated nonimmigrant status or a condition of entry into the U.S.
  • Terminated a conditional permanent residence.
  • Encouraged or aided any other alien to enter the U.S. illegally.
  • Engaged in marriage fraud to gain admission to the U.S.
  • Was convicted of certain criminal offenses.
  • Failed to register or falsified documents relating to entry in to the U.S.
  • Engaged in any activity that endangers public safety or creates a risk of national security.
  • Engaged in unlawful voting.

Deportation or Removal Process

  • A Notice to Appear (NTA) is issued by the U.S. Immigration and Customs Enforcement, served to the alien, and filed with the immigration court. In addition to containing general information about the immigrant (name, country of origin, etc.), the NTA also states the reasons for the deportation or removal.
  • A hearing is scheduled, at which the immigration judge asks if the alien is ready to proceed with the case, or if he or she needs time to secure an attorney.
  • If the judge determines that the information in the NTA is correct and that the alien can be deported, the alien is given the opportunity to apply for any form of relief from deportation. If the alien is eligible for a form of relief and decides to apply for it, an individual hearing date is scheduled. If the alien is not eligible, deportation will be ordered.
  • If the alien has been ordered deported, the alien has 30 days from the date of the decision to appeal the decision to the Board of Immigration Appeals (BIA). If the BIA decides against the alien, the alien has the option of appealing to the appropriate U.S. Court of Appeals. The immigration service has the opportunity to appeal an unfavorable individual hearing decision, but may not appeal an unfavorable decision by the BIA.

Discretionary Relief:

Voluntary Departure — Voluntary departure is the most common form of relief from removal and may be granted by Immigration Judges. 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.  Immigrants 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.

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

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.

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.

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. 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.


How to Become Legal: Ineligibility

August 13, 2011

We have outlined the detailed process of obtaining citizenship in the United States.  But who is ineligible of becoming a citizen?  Here is a list of the classes of non-citizens who are ineligible to receive visas, according to FindLaw and the Immigration and Nationality Act:

Health-Related Grounds

  • Any immigrant who is determined to have a communicable disease of public health significance, including AIDS.
  • Any immigrant who seeks admission as an immigrant (or who seeks adjustment of status to that of lawful permanent resident) and who has failed to present documentation of having received vaccination against certain preventable diseases, including: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B.  An exception to ineligibility under this class exists for certain adopted children 10 years of age or younger.
  • Any immigrant who is determined to have a physical or mental disorder (and associated behavior) that may pose, or has posed, a threat to the property, safety, or welfare of him/herself or others, or is likely to recur or to lead to other harmful behavior.
  • Any immigrant who is determined to be a drug abuser or addict.

Criminal and Related Grounds

  • Any immigrant convicted of, or who admits having committed, almost any type of crime (other than a purely political offense), EXCEPT if the crime was committed when the alien was under 18, AND was committed (and the alien released from incarceration) more than 5 years before the date of application for visa or admission to the U.S., AND the maximum penalty possible for the crime did not exceed imprisonment for one year, AND if convicted the alien was not sentenced to a term of imprisonment in excess of 6 months.
  • Any immigrant who has committed a violation of (or a conspiracy or attempt to violate) any state, federal, or foreign country’s law relating to certain controlled substances.
  • Any immigrant convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single incident, for which the sentence to confinement was 5 years or more.
  • Any immigrant who is known to be, or suspected of being, an illicit trafficker in any controlled substance (and certain spouses and children of these individuals, when the family member received financial benefit).
  • Any immigrant who is engaged in prostitution, or has been engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status.
  • Certain immigrants involved in serious criminal activity who have asserted immunity from prosecution.
  • Significant traffickers in persons, or beneficiaries of trafficking.
  • Immigrants engaged in money laundering.

Security and Related Grounds

  • Any immigrant believed to be seeking to enter the United States to engage in activity relating to the overthrow of the government, espionage, sabotage, or to violate laws prohibiting the export of certain goods, technology, or sensitive information.
  • Any immigrant who has engaged in a terrorist activity, is a representative of a foreign terrorist organization, or other similar group.
  • An immigrant whose entry or proposed activities in the United States would have potentially serious adverse foreign policy consequences for the United States.
  • Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party.
  • Any immigrant who participants in nazi persecutions or genocide during the period beginning on March 23, 1933, and ending on May 8, 1945.

Likely to Become “Public Charge”

Any immigrant who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General, is likely at any time to become a public charge is inadmissible, considering factors including the applicant’s age, health, family status, assets, financial status, education, and skills.

Labor Certification and Qualifications for Certain Immigrants

Any immigrant who seeks to enter the U.S. to perform skilled or unskilled labor is inadmissible, unless the Secretary of Labor makes certain determinations regarding the impact on U.S. workers and the economy. This ineligibility class is subject to a number of exceptions.

Aliens Previously Removed, and Individuals in Violation of Immigration Laws

Certain aliens who were previously removed from the U.S., certain aliens who are unlawfully present in the U.S., and certain individuals who are in violation of U.S. immigration laws, including documentation requirements.


How to Become Legal: Special Cases

August 13, 2011

The normal waiting period to obtain eligibility for naturalization is five years, but there are certain exceptions.  Here are the special cases and exceptions to the standard eligibility requirements to apply for naturalization, according to FindLaw:

Spouses of U.S. Citizens

Generally, certain lawful permanent residents married to a U.S. citizen may file for naturalization after residing continuously in the United States for three years if immediately preceding the filing of the application:

  • the applicant has been married to and living in a valid marital union with the same U.S. citizen spouse for all three years;
  • the U.S. spouse has been a citizen for all three years and meets all physical presence and residence requirements; and
  • the applicant meets all other naturalization requirements.

There are also exceptions for lawful permanent residents married to U.S. citizens stationed or employed abroad. Some lawful permanent residents may not have to comply with the residence or physical presence requirements when the U.S. citizen spouse is employed by one of the following:

  • the U.S. Government (including the U.S. Armed Forces);
  • American research institutes recognized by the Attorney General;
  • recognized U.S. religious organizations;
  • U.S. research institutions;
  • an American firm engaged in the development of foreign trade and commerce of the United States; or
  • certain public international organizations involving the United States.

Children of U.S. Citizens

Generally, U.S. citizen parents of children born abroad may file a N-600 Application for Certificate of Citizenship. This form should be completed in accordance with the instructions provided and should be accompanied by 2 photographs of the child, copies of any documents that verify eligibility, and the required filing fee to be considered complete and ready to process.

Adopted children of citizen parents acquire citizenship. For adopted children, adoptive parents file an N-643 instead of an N-600. However, adopted children over 18 must file an N-400.

Veterans of U.S. Armed Forces

Certain applicants who have served in the U.S. Armed Forces are eligible to file for naturalization based on current or prior U.S. military service. Such applicants should file the N-400 Military Naturalization Packet.

Lawful Permanent Residents with Three Years U.S. Military Service

An applicant who has served for three years in the U.S. military and who is a lawful permanent resident is excused from any specific period of required residence, period of residence in any specific place, or physical presence within the United States if an application for naturalization is filed while the applicant is still serving or within six months of an honorable discharge.


How to Become Legal: Visas

August 13, 2011

Persons interested in living permanently or temporarily in the United States must apply for a visa.  While those seeking permanent residency seek green card status, those who wish to remain in the U.S. temporarily must apply for a nonimmigrant visa.  Here is an overview of the visa application options, according to FindLaw:

Visa Waiver Program

Entering on a visa waiver is a simpler way to enter the USA if you are only planning on staying 90 days or less.  If you come by land from Canada or Mexico, you will also need to present proof of finances to fund your stay.  Although this is the simplest way to enter the USA, you give up a lot of your benefits and rights by participating in the program; it is often easier to deport those in the USA on a Visa Waiver Program.  As of August 2004, the members of the visa waiver program included:  Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

Nonimmigrant Visas

Tourist and Business Visitor Nonimmigrant Visas:  The majority of nonimmigrant visas are issued to tourists (temporary visitors for pleasure) and business visitors (people engaging in commercial transactions in the U.S. but not employment). Often visitors are issued a multiple purpose business/tourist visas (B-1/B-2 category). Both B-1 and B-2 visa are valid for one year and are renewable in six-month increments.

Temporary Worker Nonimmigrant Visas: An area of nonimmigrant visas that has grown recently is the H-temporary workers category. These visas are issued to workers with “specialty occupations” (such as computer systems analysts and programmers) or to workers performing temporary services or labor when persons capable of performing this work are not available in the U.S (such as agricultural workers). The visas are designed to help employers meet an immediate and temporary need for labor.

Nonimmigrant Visas for Education: Many aliens also seek entry to the U.S. for educational purposes. The F-1 visa is for academic students entering the U.S. to pursue a full course of study at an established educational institution. Students who wish to attend vocational or nonacademic programs must enter on an M visa. The J visa covers exchange visitors such as students, teachers, and professors. With certain restrictions, F and J visa holders may work while in the U.S. The M visa holder’s ability to work, however, is more limited.

Immigrant Visas

Visas not subject to numerical limitations are granted to immediate relatives (children, parents and spouses) of U.S. citizens, resident aliens returning from temporary visits abroad, and former U.S. citizens. To qualify as a “child” of a U.S. citizen the person must be unmarried, under 21 years old, and either a legitimate child, stepchild, illegitimate child, adopted child, an orphan adopted abroad, or an orphan coming to the U.S. to be adopted. A parent with any of the relationships described under the definition of child qualifies as a “parent.” In order to receive a visa as the spouse of a U.S. citizen the alien must have a “valid and subsisting marriage” with that citizen.

Visas subject to numerical limitations are granted to persons qualifying for family sponsored, employment related, or diversity immigrant visas. There are four categories of family sponsored visa preferences: unmarried sons and daughters of U.S. citizens and their children; spouses, children, and unmarried sons and daughters of legal permanent residents; married sons and daughters of U.S. citizens and their spouses and children; and brothers and sisters, including spouses and children, of U.S. citizens ages 21 and over. There are five categories of employment-sponsored preferences: priority workers; professionals with advanced degrees or aliens of exceptional ability; skilled workers, professionals (without advanced degrees), and needed unskilled workers; special immigrants (e.g. ministers, religious workers, and employees of the U.S. government abroad); and employment creation immigrants or “investors.”

Diversity Lottery

“The diversity immigration program” provides another, but more limited, method of gaining permanent residence. Under this program, approximately 55,000 immigrant visas are available annually to aliens who are natives of countries determined by the I.N.S. to be “low admission” countries, that is, countries that are proportionately under-represented in the U.S. immigrant population. To receive a diversity visa, an individual must have at least a high school education or its equivalent, or, within the preceding five years, two years of work experience in an occupation requiring at least two years training or experience.


How to Become Legal: Green Cards

August 13, 2011

A green card reveals the non-citizen’s permanent resident status in the United States.  Here are the eligibility requirements, according to FindLaw:

Categories of Those Eligible for Green Card Applications:

Immediate relatives of US citizens 
Relatives in the immediate family of U.S. citizens are eligible to file a green card application, so long as the citizen-relative petitions for them.  The following relations qualify under this category:

  • spouses of U.S. citizens, including recent widows and widowers
  • unmarried children under age 21 with at least one U.S. citizen parent
  • parents of U.S. citizens, if the U.S. citizen child is at least age 21
  • stepchildren and stepparents of U.S. citizens, if the marriage creating the stepparent/stepchild relationship took place before the child’s 18th birthday, and
  • adopted children of U.S. citizens, if the adoption took place before the child reached age 16

Other family members of citizens and permanent residents 
Only 480,000 non-citizens are granted green cards under this category per year, and it is based on a first come, first served basis.  The wait in this category can be lengthy, varying from three to even twenty-four years.  This type of classification is called a “preference category” because these family members are classified and prioritized accordingly:

  • First Preference: Unmarried adults, age 21 or older, who have at least one U.S. citizen parent.
  • Second Preference: Spouses and unmarried children of a permanent resident, so long as the children are younger than age 21; and unmarried children age 21 or older of a permanent resident.
  • Third Preference: Married people who have at least one U.S. citizen parent.
  • Fourth Preference: Sisters and brothers of U.S. citizens, where the citizen is age 21 or older.

Workers whose skills are needed in the USA 
There are only 140,000 workers who are admitted each year, which is why the preference category system is used.  Usually, the non-citizens must show proof that there is a job offer.  In those cases, the employer must show that he or she recruited for the position in the USA and that there were no qualified US citizens who could fill the position.   Non-citizens who want to obtain a green card based on employment must wait for an immigrant visa number to become available according to the following preferences:

  • First Preference: Priority Workers.  Priority workers include those with unique and advanced skills, education, or talents such as
    • those who excel in the arts, sciences, athletics, business, or education,
    • exceptional professors and researchers, and
    • supervisors and executives of global companies.
  • Second Preference: Professionals with extraordinary ability or advanced academic degrees
  • Third Preference: Skilled Workers, professionals, and other qualified workers
  • Fourth Preference: People in religious vocations and special immigrants including
    • religious workers of legitimate religious organizations
    • foreign medical graduates who have been in the USA since 1978
    • former Panama Canal Zone employees
    • foreign workers who were longtime employees of the U.S. government
    • retired officers or employees of certain international organizations who have lived in the USA for a certain period of time
    • non-citizen workers employed by the U.S. consulate in Hong Kong for at least three years
    • non-citizen children who have been declared dependent in juvenile courts in the United States
    • international broadcasting employees, and
    • certain members of the U.S. Armed Forces who enlisted overseas and have served for at least twelve years.
  • Fifth Preference: Investors wishing to invest at least a million dollars into a US business (or $500,000 in depressed economies). This investor must also have at least ten employees.

Green card lotteries that create ethnic diversity 
Green card lotteries, whose purpose is to create ethnic diversity, make 50,000 green cards available to non-citizens from countries that have had the fewest immigrants come to the USA. 

Asylum and refuge 
“Asylum” is used to refer to the protection of those non-citizens who are already currently living in the USA; whereas, “refuge” is used to refer to the protection of those non-citizens who live outside the USA, and move to the USA for protection.  Asylum and refuge are available to those non-citizens who fear that living in their native country would threaten their safety or subject them to persecution.  This persecution must be based on a protected category such as race, nationality, religion, political stance, or affiliation with a certain group.  Fearing poverty or random violence does not qualify non-citizens for asylum or refuge.

Amnesty 
Amnesty is the basis for non-citizens, living in the USA illegally, to obtain a green card.  Years ago, amnesty green cards were offered to those illegal non-citizens who had been living in the USA since January 1, 1985.  Similarly, between May 1, 1985, and May 1, 1986, amnesty green cards were offered to field workers who had worked for at least ninety days.  These deadlines have passed, but because the green card application process can be lengthy, there are still pending applications.

Long-Time Residents
Long-time residents who have lived in the USA for more than ten years are allowed to request permanent residence.  This typically happens in deportation court proceedings, where the non-citizen requests permanent residence as a defense.  To do this, the non-citizen must show that his or her U.S. citizen children or spouse would face “extraordinary and exceptionally unusual hardship if the non-citizen were deported.  Going to USCIS in order to ask about this is dangerous because they could deport you.

Registry
Non-citizens who have lived continuously in the USA since January 1, 1972, may apply to obtain a green card.  The requirements include showing that you are of good moral character and are not inadmissible.  All of your time in the USA qualifies, even if it was not legal or was on a visa.