Immigration Q & A May 2012

Author by Edward Boreth

Q. I am ready to file for my green card, but I had a DUI conviction last year. Will this be a problem?

You should check with an attorney if you have ever been arrested or citied for criminal charges. If it is a first time simple DUI, and nobody was hurt at the time of the incident, you are probably not precluded from becoming a permanent resident. However, you will need to provide to USCIS a certified copy of your arrest report, the charging document and the judgment. Many USCIS officers will also request proof of your successful completion of probation. If you do not have the certified copies, USCIS can deny your green card.

Q. I received a letter to go to Immigration Court for a Master Hearing. What is that?

This means the Department of Homeland Security has started removal (deportation) proceedings against you. A master hearing is the time that an immigration judge asks you how you plead to the charges against you and how you plan to defend your case. The letter that you received is referred to as a Notice to Appear (NTA), and it lists the charges that the government has against you. The charges are the ways in which the government thinks you broke US immigration laws.

IT IS VERY IMPORTANT THAT YOU GO TO YOUR IMMIGRATION COURT HEARING. If you do not show up, you will be ordered deported. A deportation order is very difficult to overcome. I also suggest that you hire a lawyer experience in removal cases. A removal hearing is not something you want to try by yourself. If you cannot find a lawyer, go to the hearing nevertheless, and let the judge know that you are still looking for a lawyer. In many case, the Immigration Judge will give you some time to find a lawyer.

Q. I came to the United States in a K-1 visa. My fiancé and I were married, but shortly afterward our relationship went terribly wrong. He called immigration and told them that he wants to cancel my petition. He kicked me out of his house and now I am staying with my cousin. Will immigration come to deport me or can I stay in the US? What if I marry someone else?

If you were the victim of domestic violence or psychological abuse by your husband, you may ask immigration to let you stay in the United States by filing a self-petition. You will need to show that you had a real marriage with your husband and that he abused you either physically or mentally (USCIS uses the term “extreme mental cruelty). You do not need your husband’s consent to file this petition. You may not get remarried until you become a permanent resident. If you divorce your current husband, and marry another US citizen, you will not be able to adjust your status in the United States. A person who enters on a fiancée visa may not adjust status in the US unless it is through marriage to the same person who filed the fiancée visa petition.

Q. My green card application was denied. I got a letter that I should leave the United States within 30 days. Is this a deportation order and do I really need to leave?

A green card denial from USCIS is not a deportation order. Only an Immigration Judge can order deportation. A denial is still very serious. If you do nothing, it may be followed by a letter to go to Immigration Court (see question above). However, USCIS might have made an error in your case, and you might be able to appeal or refile your petition or application. Usually there are strict time requirements for appeals, so be sure to see an immigration attorney as soon as possible. Do not just pack up and leave the country without first speaking to an immigration attorney. In many cases, leaving the US triggers a bar to readmission. That means that if you leave, you may not ever be ale to come back, but if you stay, you may be able to fight your case.

Q. My husband and I have lived in the United States for 9 years. We came with a tourist visa, but it expired a long time ago. We have 3 children, our youngest daughter is 7 years old and born in the United States. We have seen several immigration lawyers, who have all told us that there is nothing we can do, except wait for the government to pass an amnesty law. Are there any amnesty laws being considered by the government?

I do not expect any comprehensive “amnesty” laws in the near future, certainly not before the next elections. While the unemployment numbers are high, it is unlikely that Congress will be passing any laws that may look like they are taking jobs from U.S. citizens. However, small changes in the immigration rules happen very frequently, and one small change may make all the difference in a particular case.

In your case, when your daughter turns 21, she will be able to petition for you. Unfortunately, there’s a 14 year wait until that happens. In the meantime, if you get placed in removal proceedings after 10 years in the US, the Immigration Judge may allow you stay if you can show that your leaving would cause and extreme and unusual hardship to your US citizen and permanent resident family.

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 17 years. He is a partner at Shapovalov & Boreth and a director of the Citizenship Clinic. He is also an avid cricket fan.