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| 3. Ask Visalaw.com | |
| In our Ask Visalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari's blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.
If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can't answer every question, but if you ask a short question that can be answered concisely, we'll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here. 1) QUESTION: Is it true that you can only be deported by an immigration judge?
ANSWER: This is a myth. While an Immigration Judge can order non-citizens deported, Customs and Border Protection (CBP) officers can order non-citizens deported, as well. CBP officers at the border, airports and other ports of entry can issue Expedited Removal orders against someone trying to enter the United States without the proper documentation or against someone who lies or uses fraudulent documents to enter the United States.
In addition, when a non-citizen is detained by Immigration and Customs Enforcement (ICE), ICE officers will often try to get the person (especially, individuals from Mexico) to agree to a Stipulated Removal. If someone agrees to a stipulated removal, he or she gives up their right to go before an immigration judge and agrees to be deported. Individuals usually sign these documents because they don't realize what they are signing. They believe that they are agreeing to go home without being deported. Stipulated Removals are often confused with Voluntary Departure orders, which are issued by an Immigration Judge and not by ICE.
However, if someone was denied entry into the United States, it doesn't necessarily mean that they were expedited. Sometimes, CBP officers will allow someone to withdraw their application for admission to the United States and agree to let them go back to their home country without a removal order. On the other hand, CBP and ICE officers will sometimes just send individuals back to their home country without going through the formal process of "Expedited Removal" or "Stipulated Removal". The difference depends on the paperwork completed by the officer.
Bottom line:
1. If you are ever picked up by an Immigration officer, do not sign anything without speaking to your immigration lawyer, first. There is a great possibility that you are being asked to sign a Stipulated Removal order. If you sign this order, you are deporting yourself and giving your chances of getting removal relief from an immigration judge. 2. If you are applying for admission into the United States and a CBP officer asks you if you would like to withdraw your application for admission, say "yes," unless, you have a legitimate fear of being persecuted, tortured, or killed based on your race, religion, nationality, political opinion, or membership to a particular social group if sent back home. In this case, you need to ask for asylum. Otherwise, when a CBP officer asks you if you want to withdraw you application, they are giving you a choice to withdraw your application and go back to your home country, rather than being deported by Expedited Removal. Either way, you are going home. However, if you are allowed to withdraw your application, you will not have a deportation bar from future admissions or visas. 3. If you have been denied entry into the United States or have been sent back home by CBP or ICE, you should have an immigration attorney request your immigration files from the various government agencies to see if you have been deported.
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2) QUESTION: I came to the United States fifteen years ago on a visitor's visa. Can my company sponsor me for a green card?
ANSWER: As a general rule, in order to be eligible to apply for Adjustment of Status (an application for a green card in the United States), an applicant must show that they have maintained valid immigration status up until the time they file their application for Adjustment of Status. Therefore, someone who enters on a visa, but overstays the time listed on their I-94 is not eligible to apply for Adjustment of Status, unless they qualify for one of the exceptions to this rule. The most common exceptions are a) adjustment for an Immediate Relative, b) adjustment under 245(i) amnesty, and c) adjustment under 245(k). There are other exceptions to this rule; however, these three are the most common.
a) Immediate Relative Exception: An Immediate Relative (IR) is defined as either the spouse of a U.S. citizen or the unmarried child of a U.S. citizen who is under the age of 21. If a foreign national recently entered the U.S. with a visa, was admitted to the Visa Program, or was paroled into the U.S., they are able to apply for Adjustment of Status as an Immediate Relative. b) 245(i): Another option is the foreign national can show that an immigrant petition or labor certification was filed on their behalf before January 14, 1998, or that an immigration petition or labor certification was filed on their behalf before April 30, 2001. If the latter, they must prove they were in the U.S. on December 21, 2000. When filing under the 245(i) "amnesty" the foreign national must also pay an additional $1,000 penalty filing fee. c) 245(k): Under the 245(k) exception, a foreign national who is filing for a green card based upon an immigrant petition filed by their employer may still be eligible to apply despite falling out of status. To be eligible under 245(k), the foreign national must not have been out of status, worked without authorization, or done anything else to violate their status for a total of more than 180 days between the time of their last entry into the U.S and the time they file the green card application.
If you are not eligible to apply for adjustment of status in the U.S., you might still be eligible to apply for an immigrant visa at the U.S. Embassy or Consulate in your home country. However, you should consult with an immigration attorney before doing so to make sure that you are not barred from receiving a visa under any of the categories of inadmissibility.
This is a brief overview of these complex rules. As such, I recommend that you consult with a qualified immigration attorney before filing an application for adjustment of status under one of these rules.
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Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. | |
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