First Quarter 2009 Newsletter
The immigration law gives the same benefits to step-children of U.S. 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 U.S. 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 U.S. citizen.
If an individual has previously been ordered deported or has actually been deported or refused entry into the U.S., they are generally not able to obtain residency or even permission to visit the U.S. There is an exception though, for individuals who have U.S. 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 U.S. Specifically, the Immigration Department examines the detrimental effect that the absence of the deportee will have on their family members that are U.S. citizens or residents. The person seeking this pardon or permission to be in the U.S., will need to prove that the benefit to their family in the U.S. outweighs the effects of their prior violation(s) of the law (including immigration, criminal, tax, etc.)
A person who has violated an immigration law, is generally not able to obtain immigration benefits in the U.S. or at any U.S. consulate abroad. For example, if a person has been unlawful or illegal in the U.S. 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.
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 U.S. 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.
Even though the 245(i) 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 in for the 245(i) 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 U.S. 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 245(i) periods, we encourage you to have your situation reviewed by an immigration attorney, to see if you qualify for any immigration benefits.
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.