Published on the World Journal Weekly on July 17, 2016

Q&A 1

Entered Country Illegally, Married to U. S. Citizen, Have Kids, Do I Qualify for Ten-year Green Card?

I came to this country in 2003, married my wife in 2007, and we have 2 children. Because I came illegally across the border, lawyers have told me that I am not eligible to adjust my status in the U. S. even though my wife is a U. S. citizen. I do not want to leave the U. S. One of the lawyers that I have talked to says that I can do a ten-year green card. Everyone is in good health. I have never been arrested or had any problems with Immigration.

Dear reader,

The requirements for a ten-year green card (cancellation of removal) are that you have been in this country for 10 years on a continuous basis, have good moral character, and most importantly be able to demonstrate that your departure would cause exceptional and extremely unusual hardship to your wife and children. That is usually a heavy burden of proof. This type of relief also can only be given by an immigration court, not U.S.C.I.S. That means that there are 2 other things that you should be aware of – the first is that you will find it difficult to have the Department of Homeland Security affirmatively place you in removal proceedings so that you can make the application to the immigration court. The 2nd is that a loss before the immigration court usually results in an order of removal. An alternative that you may wish to explore is the Obama Administration’s I-601A program which allows a person like you to be petitioned by your wife on an I-130 Petition for Alien Relative and upon its approval, file for a waiver of the 10 year bar for remaining in this country for one year illegally, and upon its approval, arrange for consular processing of your case for the green card. The interview at the home consulate would in most cases be routine, and you could generally expect to be back in the States within 2 months. I note that the program is gaining in popularity and that the latest figures from U.S.C.I.S. indicate that the passage rate for waiver applications is  74% from program inception. I-601A applicants must demonstrate that refusal would cause a U. S. citizen spouse or parent extreme hardship, a lesser standard of hardship than for the ten-year green card. In addition, I-601A applicants can safely see the results of the I-601A decision while in the U. S. before making up their minds whether to further process their cases for immigrant visas.

Q&A 2

F-1 Student, Had a Problem in School, and School Voided My Status – Still Want to Go to School. What to Do?

I am an F-1 student attending a college in New York. In May, I was supposed to take final exam in English, but there was a huge problem with the subway, and I arrived at the school 30 minutes after the test began. The teacher did not allow makeup and so I flunked the course, resulting that the school voided my F-1 status with Immigration. What can I do now?  I do not think that it was really my fault. I left my apartment with plenty of time to go to school.

Dear reader,

U.S.C.I.S. allows student reinstatement under the following conditions:

1. The student has not been out of status for more than 5 months before filing for reinstatement (or demonstrates that failure to file within the five-month period was the result of exceptional circumstances and that the student filed the request for reinstatement is quickly as possible under the exceptional circumstances).

2. The student does not have a record of repeated or willful violations of immigration regulations.

3. The student is currently pursuing or intending to pursue a full course of study in the immediate future at the school that issued the I-20 form.

4. The student has not engaged in unauthorized employment.

5. The student is not deportable on any ground other than non-maintenance of status.

6. The student establishes to the satisfaction of Immigration by detailed showing either that the violation of status resulted from circumstances beyond the student’s control, or by neglect on the part of the designated school official at the school, but do not include instances where a pattern of repeated violations or where a willful failure on the part of the student resulted in the need for reinstatement.

If you believe that you are eligible for reinstatement under the circumstances, you or your lawyer would file an I-539 reinstatement request with U.S.C.I.S. including whatever attachments you believe would best support your case. I note that we handled a case like yours successfully some time ago by arguing that precedent decisions have long held in removal proceedings that where an individual is late for court hearing but the immigration judge is still on the bench, a hearing in absentia should never be conducted. Although the circumstances are not the same, they are similar since the teacher was still in the classroom at the time that you appeared late for the test.

Q&A 3

Is my DACA Status Canceled by the Supreme Court?

I recently applied for an extension of my DACA Dreamer temporary stay and have not received the result. I read that the Supreme Court just recently last week canceled the President’s program. What can I do now?

Dear reader,

The Supreme Court decision on June 23, 2016, did not cancel the existing DACA (Deferred Action for Childhood Arrivals) program. The result was to disallow other programs that the Obama administration announced on November 20, 2014, which would have given relief to up to 5 million undocumented immigrants in the form of 3 year stays from removal proceedings and employment authorization. The 2 programs were DAPA (Deferred Action for Parental Accountability) and an expanded form of DACA which would have loosened the current DACA rules on eligibility. The existing rules for DACA eligibility remain the same for use by you and any others who have not yet applied for the relief:

1. You were under the age of 31 as of 6/15/12.

2. Entered the U. S. before reaching your 16th birthday.

3. Continuous residence in the U. S. since 6/15/07.

4. Physically present in the U. S. on 6/15/12, and at the time of applying for DACA.

5. No lawful status on 6/15/12.

6. Currently in school, have graduated or obtained a certificate of completion from high school, or GED certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the U. S.

7. Have not been convicted of a felony, significant misdemeanor, 3 or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

Copyright © 2003-2017 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.