- 2009 Immigration Newsletter
- March 24, 2010
- Law Firm: FitzGerald & Company, LLC - Boston Office
Fitzgerald & Company, LLC
Newsletter January 2009
Immediate benefits for your Child through their Step-parent
The immigration law gives the same benefits to step-children of US citizens, as it does to their natural children, so long as the marriage that created the step-parent/child relationship occurred before the child was 18 years of age. If the child is under 21 years of age, the child is eligible to apply for residency immediately upon approval of the I-130 petition.
This is an important benefit to consider as it does not depend upon the immigration status of the natural parent. Many immigrants believe that they have to wait until they are legal or applying for immigration benefits to get a benefit for their children. However, this is not the case. For example, the natural parent may be unlawfully present in the US and not eligible for any benefit directly, nevertheless, his or her children may be eligible for residency based upon the step-child/parent relationship. This is a great opportunity to unify the family, for any parent who is separated from their minor child and who is married to a US citizen.
Return or remain in the US after deportation
If an individual has previously been ordered deported or has actually been deported or refused entry into the US, they are generally not able to obtain residency or even permission to visit the US. There is an exception though, for individuals who have US resident or citizen family members and can obtain a special permission (waiver/pardon of deportation) from the Immigration Department. The Immigration Department will review several aspects of the person’s immigration history and the significance or importance of their family connection in the US. Specifically, the Immigration Department examines the detrimental effect that the absence of the deportee will have on their family members that are US citizens or residents. The person seeking this pardon or permission to be in the US, will need to prove that the benefit to their family in the US outweighs the effects of their prior violation(s) of the law (including immigration, criminal, tax, etc.)
You may be eligible for a “Waiver of Inadmissibility”
A person who has violated an immigration law, is generally not able to obtain immigration benefits in the US or at any US consulate abroad. For example, if a person has been unlawful or illegal in the US for one year or more, they generally cannot get immigration benefits in the United States. However, there is an exception to this rule. If the individual has an immediate relative (this does not include brothers/sisters) who is a citizen or legal permanent resident, and would suffer “extreme hardship” (defined as financial hardship combined with emotional and psychological hardship or a significant physical/health hardship), even if the illegal immigrant is not able to obtain immigration benefits because of prior immigration violations, these may be pardoned and a waiver of inadmissibility granted.
TPS status for family members
A recent decision from the Board of Immigration Appeals has determined that the children and spouses of individuals in TPS status may be granted TPS status, even if they are not a national of one of the TPS approved countries (i.e. El Salvador, Nicaragua, etc.). Even though this is a non-precedent decision, meaning that it does not need to be followed mandatorily, we encourage individuals who believe their family members fall in this category to have their case reviewed by an attorney to see if they may qualify for TPS status. Currently efforts are being made by the legal community, including our firm, to expand the number of people eligible for TPS under this decision.
Criminal charges and your immigration status
Virtually any arrest, investigation or charge by any law enforcement agency or officer in or outside the United States could have a potentially negative impact on the immigration status of a non US citizen, and should therefore be reviewed with an attorney. If it is determined that negative effects will result from this situation, there are a number of legal actions that can be taken in order to reduce or eliminate these potential negative effects. For example, a petition can be filed in the criminal court to cancel or vacate a conviction if there was a technical error such as the failure to give “immigration warnings” or literally a warning that accepting responsibility for the alleged misconduct will have a negative effect on the person’s immigration status.
Some may still benefit from the old 245i law
Even though the 245i law has not been in effect since 2001, there are a number of people who may still be eligible to access benefits through this law, and may not be aware of this. For example, if your uncle was a citizen and he applied for your parents before April 30th, 2001, when you were under 21 years of age, you are automatically grandfathered for the 245i law and you may obtain residency through a family, employment, or any other type of petition, without having to leave the United States. Also, if you are married and your spouse has an open 245i immigration petition, you can obtain benefits through it as well, even if you entered the US after the year 2000. If you suspect that you or any of your family members may have been included in an immigration petition during one of the prior 245i periods, we encourage you to have your situation reviewed by an immigration attorney, to see if you qualify for any immigration benefits.
Suing the Immigration service may be the answer
There is a large number of individuals who have had their immigration petitions open and pending with the Immigration Department for a long period of time beyond what is normally required to have an answer. Any individual who finds themselves in this circumstance should consider bringing a legal action against the Immigration Department to obtain a court order that their case be adjudicated or decided immediately. There is generally no additional risk than what already exists by filing an immigration case, and the benefits are substantial (i.e. being able to enjoy your immigration status and petition for family members sooner versus having your case remain in pending status indefinitely).
If you are concerned that your case is taking a long time to be decided and you think you may be eligible to file a law suit you should contact an attorney to have the circumstances of your case reviewed.