It is critical when seeking citizenship or permanent residence (green card) in the Unites States to accurately determine eligibility, and then carefully prepare and file the paperwork. If your application has been denied, a lawyer with expertise may be able to pursue a waiver or otherwise challenge a finding of ineligibility.
Please contact the Law Office of Kenneth Joseph Hutz for assistance:
1) determining eligibility for an immigrant visa (green card) or citizenship
2) preparing your visa or citizenship application
3) submitting a waiver for citizenship or residency ineligibility
Permanent Residence Eligibility
(green card)
An immigrant visa allows entry to the U.S. as a permanent resident, to be issued a green card, and to reside in the U.S. indefinitely.
There are three common methods of obtaining a green card:
- Sponsorship by a family member — A U.S. citizen can sponsor a fiancé, spouse, or unmarried child under the age of 21 for an immediate green card. The government also issues a limited number of green cards to older or married children on a lower priority basis. Similarly, current green card holders can sponsor family members.
- Sponsorship by an employer — Companies that hire foreign employees and can sponsor his or her employees for green cards. Persons of extraordinary ability can also self-petition for green cards without the need of an employer sponsor.
- Refugees and asylees — Those granted asylum or admitted to the U.S. as refugees may apply for green cards for themselves and their families after one year.
In addition to these three common methods; there are numerous other methods of obtaining a green card that an experienced immigration attorney can help you explore. The process for obtaining a green card can differ substantially, depending on the path you are using and whether you are applying from inside or outside the United States. It is imperative to have quality legal representation to take the right steps, meet necessary deadlines, and do everything possible to expedite your application.
Citizenship
Foreign nationals seeking citizenship in the United States must often first obtain an appropriate visa or other entry authorization and a green card before ultimately applying for citizenship. In certain cases, however, foreign nationals may have the right to citizenship, being citizens and not even realizing it.
People with at least one U.S. citizen parent may have a right to citizenship without investing the time necessary to complete the naturalization process. This may apply to you if you were born of a legal marriage and at least one of your parents lived in the United States for a continuous period prior to your birth — although the length of that period depends on when you were born. Parents who become naturalized U.S. citizens may also be able to obtain citizenship for their minor children.
Those not entitled to citizenship by birth may apply for citizenship through the naturalization process.
Any adult can qualify by meeting a number of requirements:
- You must have held a green card for at least five years. This is reduced to three years if you are married to a U.S. citizen.
- During your time as a legal permanent resident, you must have been present in the United States for at least 30 months. This is reduced to 18 months if you are married to a U.S. citizen.
- You must have had residency in your state for at least three months.
- You must remain physically present in the United States while your application is pending.
- You must demonstrate an ability to read and write English and a basic knowledge of civics and U.S. history. This is usually done by passing the Naturalization Test.
- You must demonstrate good moral character, usually meaning the absence of a serious criminal record.
Permanent Residency and Citizenship Denials and Waivers
A person applying for permanent residence (green card) or citizenship can be found “inadmissible” for various reasons, such as due to a criminal conviction, violation of U.S. immigration laws, security risks, or the likelihood that he or she will rely primarily on government cash assistance. However, waivers of inadmissibility are available to certain foreign nationals. A waiver means that you ask that the U.S. government “forgives” the ground of inadmissibility. Some of the more common grounds of inadmissibility allowing for a waiver application are discussed below.
Waiver based on Unlawful Presence
Unlawful presence is the most common ground of inadmissibility for which waiver applications are filed. If you accumulated unlawful presence in the United States and are subject to the three-year or ten-year bar upon departure and attempted reentry, you may qualify to file a waiver application if you have a U.S. citizen or lawful permanent resident spouse, fiancé, or parent who will experience “extreme” hardship if you are denied admission. You cannot apply for this waiver on the basis of having a U.S. citizen or lawful permanent resident child.
The most difficult part of submitting a waiver application for unlawful presence is demonstrating potential extreme hardship to your qualifying U.S. relative. Extreme hardship is not defined in the I.N.A., but it is generally understood to mean hardship that is greater than the normal hardship a qualifying relative can be expected to experience if you are denied admission. This vague definition means that there is no right or wrong answer. However, it also means that the officer reviewing your case has broad discretion in deciding whether or not your relative’s circumstances constitutes extreme hardship.
There are two options for applying for this waiver. Some applicants, who are immediate relatives of U.S. citizens and can show extreme hardship to a U.S. citizen spouse or parent, can apply for a “provisional waiver” (or “stateside” waiver) on Form I-601A before departing the U.S. for their consular interview. The principal benefit of this option is that it reduces the risk of being stuck outside the U.S. for three or ten years if the application is denied. Applicants who don’t qualify for a provisional waiver (such as spouses of U.S. permanent residents and siblings of U.S. citizens) will need to apply for the traditional I-601 waiver.
Waiver based on Misrepresentation
A second common ground of inadmissibility giving rise to a waiver application is the result of having previously committed immigration fraud or misrepresentation. However, no person may be eligible for a waiver after having falsely claimed to be a U.S. citizen.
Like unlawful presence waivers, an applicant must have a U.S. citizen or lawful permanent resident spouse, fiancé, or parent to qualify. The applicant must show that the qualifying relative will suffer extreme hardship if you are denied admission.
Waivers based on Criminal Grounds
Individuals denied admission to the United States because of a criminal conviction may be eligible to file a waiver application. The grounds for this waiver are enumerated in Section 212(h) of the I.N.A. and include crimes of moral turpitude, prostitution, and a single offense of possession of 30 grams or less of marijuana. Waivers are not allowed for murder, torture, aggravated felonies or for violations of any other law regarding controlled substances.
Applicants must prove that more than 15 years has passed since you committed the crime and applied for admission to the United States; or you have a U.S. citizen or lawful permanent resident spouse, fiancé, child, or parent who will experience extreme hardship if you are denied admission.
For consultation please contact us.
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Our offices are in San Francisco, California & Oaxaca, Mexico.
