Immigration Q & A January 2015

Author by Edward Boreth

Q. I came to the US with my husband and children almost 20 years ago on a visitor visa. My visa has long ago expired and I have no other immigration status. My daughter is now married and recently got her green card. What can I do about my immigration status? Does the nee announcement by the president help me in any way?

A. Yes. Under the new Deferred Action for Parents (DAP), you will be able to apply for a three year work permit and you will be safe from deportation for that time, as long as you have lived her more that 5 years, have no major criminal history and have children who are permanent residents or citizens. This program is scheduled to come out in late spring or early summer. Additionally, once your daughter becomes a US citizen, she can apply for your green card. She may filed for citizenship after three years as a permanent resident if she obtained it through marriage and is still living together with her husband. Otherwise, she has to wait for five years to apply.

Q. I have been in United States over ten years. I had a case with immigration court and the judge ordered me deported, but I never left. I also received a ticket for driving with an expired driver’s license, because I was not able to renew my license due to my immigration status. I have two young children, ages 5 and 7, who were born here. Will I be able to petition for a status under the new Obama rule?

A. The new announcement by the President is Deferred Action for Parents (DAP). It does not give you a legal status, but doe allow you reprieve from deportation and a work permit for three years. It seems that you would qualify, because the order of deportation is not an impediment, as the policy was designed to prevent deportation of people with families. The court case is not what immigration terms a serious or grave case, and should also not prevent you for from applying for temporary work authorization.

Q. I live in Canada, but I have been offered a job in the United States. I am a Canadian citizen. What is the process by which I can work legally in the U.S.?

In addition to the H-1B and L-1 visas, Canadian citizens may obtain TN visas. If your profession is listed on the NAFTA (North American Free Trade Agreement) list, and you have the required educational credentials for your profession, your U.S. employer may ask the Department of Homeland Security to admit you in TN status to be employed by the US employed. The process does not require a petition to be filed with USCIS, and is relatively fast. The professions list features professions such as accountant, architect, computer systems analyst, engineer, management consultant, pharmacist, and many others.

I am a citizen of Bangladesh. I lived in Canada for many years, but never became a citizen of Canada. I came to the U.S. 6 years ago. I have married a US citizen and would now like to apply for my green card. Can I do it here?

The answer depends on how exactly you entered the United States. If you are not a citizen of Canada, you would have generally needed a visa to enter the U.S. If you entered with a visa, you would have a stamp in your passport showing entry and a form I-94. If you did not get your passport stamped, it may still be possible for you to adjust status in the U.S., but the situation gets complicated and the result may depend on the smallest of facts. Talk to an immigration attorney about the exact circumstance of your entry to the U.S.

Q. I came to the U.S. on a visa 9 years ago. Now I am married to a US citizen, and we are ready to apply for my green card. However, I was arrested a few years ago. I was a very small case and the judge dismissed it. My wife does not know about it. Do I have to tell immigration about it?

A. Absolutely. No matter how “small”, if you have had any arrests, you have to tell immigration and provide certified copies of the police report and the court disposition. USCIS is well know for denying cases just because youdid not give them all the proper documents. However, before you even file anything with immigration, speak to an immigration attorney. Immigration considers many things a criminal conviction, if even if the state court does not. Even if you were never convicted, you must provided immigration with all arrest reports and documents showing how the criminal case resolved. Many convictions will prevent you from getting your green card or citizenship, and may lead to deportation. This is true even for cases that are considered very small in criminal court, such as possession of a small amount of marijuana, or petty theft. However, with some convictions you may be able to file a waiver and some do not even count as an immigration problem. How much of a problem the criminal case is depends also on whether you are applying for adjustment of status, citizenship or coming back into the country with your green card. The rules are quite complicated. So if you have any brushes with the law, talk to an immigration attorney before you file anything, because your ability to stay in this country will depend on it.

Many lawyers, such as myself, offer free or low cost consultations. Check to make sure that the lawyer is licensed and in good standing with the bar of his/her state.

Q. My father is 63 years old and has lived in the United States for 13 years as a permanent resident. He would like to apply for citizenship, but his English is very poor. Does he have to take a test in English to become a US Citizen?

Right now, the only way your father can avoid the English and Civics test is by demonstrating that he has a disability or mental impairment that prevents him from learning English. His doctor would need to fill out and sign Form N-648 requesting an exception to the English testing requirement. Not all disabilities or medical conditions are considered an impairment to learning English. The doctor must evaluate the effect of the disability or medical impairment on the applicant’s ability to learn, and must explain exactly why the medical condition prevents the applicant from learning English. If the doctor explains clearly how the disability or impairment prevents your father from learning English, USCIS will waive the English and Civics requirement, so your father will not have to take the test.

If your father does not have any medical problems that would qualify him for the waiver of English and Civics, he can wait two more years to apply. An applicant for naturalization who has been a permanent resident for 15 years and is 55 or older can take the civics test in his native language. He will be allowed to bring a translator to the interview.

The advice in this column may not apply to your specific situation, even if it seems similar in nature. The only way to obtain legal advice is by speaking with a qualified attorney and reviewing your specific circumstances. If you have any questions, please call me at (954) 522-4115.

Edward Boreth is an immigration attorney who has practiced law for 18 years. He is a partner at Shapovalov & Boreth and a director of the Citizenship Clinic. He is also an avid cricket fan.