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IMMIGRATION AND NATURALIZATION LAWS
REPRESENTATION IN REMOVAL PROCEEDINGS               
  • What is Removal?               
  • Who is Subject to Removal?                
  • How is One Removed?
ENTRY INTO THE UNITED STATES                 
  • Immigrant Visas                 
  • Immigrant Visa Categories                 
  • Family and Employment-Sponsored Applications                 
  • Diversity Lottery
NONIMMIGRANT VISAS                 
  • Categories                 
  • Visa Waiver Program
REFUGEE AND ASYLUM
LEGAL HELP 

USEFUL LINKS

Representation in Removal Proceedings


An alien who violates the terms of his or her admission into the United States, or commits certain crimes, or misrepresents information in order to obtain immigration benefits or admission into the United States, will be put under a Removal Proceedings. A Removal Order may have some serious consequences and aliens ordered removed may also consequently become ineligible to re-enter the United States for five years, ten years, or never again. When confronted with removal proceedings, one should retain and involve an immigration attorney as earlier as possible. Our firm reviews a client’s case with an eye toward the most effective and efficient representation.


What is Removal?

Until the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), the Immigration and Nationality Act drew distinctions between deportation hearings and exclusion hearings and it was vital for immigration attorneys and professionals to comprehend the nuances in similarities, distinctions, and the shared spaces of what the law stipulated as grounds of exclusion on one hand and as grounds of deportability on the other. With the passage of IIRAIRA, however, these distinctions were rendered less important by recognizing that both types of proceedings had the same end goal—the expulsion of certain aliens. Therefore, the term "Removal Proceedings" now applies to all proceedings instituted to expel an alien from the United States and that are commencing on and after April 1, 1997.


Who is Subject to Removal?

Any non- citizen in the United States, under certain circumstances including a Lawful Permanent Resident (LPR), could be removed if he or she falls within one of the grounds of inadmissibility or grounds of deportability contained in the Immigration and Nationality Act (INA). The distinction between 'grounds of inadmissibility' and 'grounds of deportability' is one of relevance based on whether an entry of an alien into the United States is after inspection by an immigration officer or not.  Inadmissibility grounds are relevant and applicable to arriving aliens who are at ports of entry and are about to enter into the United States and also to those aliens who already are physically present in United States but whose entry were not after being inspected or paroled by an immigration officer. Section 212(a) of the INA enumerates such grounds of inadmissibility that may be classified into the following categories:
  • Health related grounds;
  • Crime related grounds;
  • Security related grounds;
  • Aliens likely to be a public charge;
  • Aliens without proper documents;
  • Aliens previously removed;
  • Illegal entrants and immigration violators; and so on.
Deportability grounds, on the other hand, are applicable on aliens who entered into the United States after being inspected or paroled by an immigration officer but harbor some impediments that would render them subject to removability.   The grounds that render a non-citizen who entered the United States after being inspected or paroled deportable are enumerated under Section 237(a) of the INA. The identified categories as grounds for deportability are: 
  • Being found to be inadmissibility at the time of entry or adjustment of status; 
  • Violation of status;
  • Security and policy grounds; 
  • Criminal offenses; 
  • Failure to register and falsification of  documents;  
  • Being a public charge; and 
  • Unlawful voting.


How is One Removed?

Before April 1, 1997, deportation action against persons already in the United States was commenced with the issuance of  “Order to Show Cause” (OSC) forms. 

Deportation actions by the Immigration and Customs Enforcement after April 1, 1997 are initiated by a charging document called a “Notice to Appear” (NTA). 

The NTA states the nature of the proceedings, legal authority for the proceedings, factual allegations and identification of provisions and statutes said to be violated. The NTA also provides advice as to the person’s right to counsel and list of available pro bono counsel; that the person charged must provide in writing his address and any changes if made in the future; the consequences of failing not to provide address; the time and place of the hearing; and the consequences of failure to appear.  The NTA orders the respondent to appear at an initial hearing (“Master Calendar”) before an Immigration Judge. If an NTA has been issued to you, an immigration attorney should accompany you to the hearing. At this hearing, the Immigration Judge reiterates the allegations set forth in the NTA, advises the respondent of his/her rights and forms of relief apparently available, and records the relief for which the respondent requests. The respondent may also designate the country to which he/she wishes to be removed to if the INS is successful at this time. The respondent will also be scheduled for an Individual hearing at a later date to determine whether relief will be granted in the Judge’s discretion. At the Individual hearing, the Immigration and Customs Enforcement (ICE) is represented by a trial attorney whose job is to prove the allegations set forth in the NTA and argue against the Judge granting discretionary relief. The respondent (applicant for relief), by his or her attorney, will counter by disproving the trial attorney’s claims and/or proving the client’s eligibility for discretionary relief. At the conclusion of the Individual hearing, the Immigration Judge may issue a decision immediately or at a later date. The Immigration Judge may grant the alien’s request for relief or enter an order to remove the alien. If the ruling goes against the alien, he or she has the right to appeal. A Notice to Appeal the Immigration Judge’s decision must be filed within 30 days or the right to appeal is deemed waived. 

Entry into the United States


Foreign nationals seeking to enter the U.S. must typically obtain a visa. There are two general visa categories, namely, "Immigrant" and "Non-immigrant " visa categories. While "Immigrant" visas are issued to aliens seeking permanent residence in the U.S., the "Non-immigrant" visas are requested by and issued to international travelers (citizens of other countries), coming to the U.S. to stay for a limited period of time with a specific purpose. 

Immigrant Visas

In general, to be eligible to apply for an immigrant visa, a foreign citizen must be sponsored by a U.S. citizen relative(s), U.S. lawful permanent resident, or by a prospective employer, and be the beneficiary of an approved petition filed with U.S. Citizenship and Immigration Services (USCIS). An alien should follow either of two paths available if he or she is seeking admission into the U.S. as an immigrant, depending on his or her residence at the time of application. Aliens living abroad and seeking to permanently reside in the U.S. go through the consular process to obtain their immigrant visa. After being issued with a visa by a consular office of the Department of State, they may enter the U.S. and become legal immigrants when, after inspection by an immigration officer, they pass through the port of entry. Aliens already in the U.S., including certain undocumented immigrants, temporary workers, foreign students, and refugees, on the other hand, go through an "Adjustment of Status" process. This is a process where the applicant files an application for adjustment of status (to that of Lawful Permanent Resident) with the Bureau of U.S. Citizenship and Immigration Services (USCIS) and is granted adjustment if found eligible and has no bar against granting him the relief sought. At the time they apply for adjustment of status, applicants may also apply for work permits. New legal immigrants are automatically authorized to work and should receive alien registration cards ("green cards") after becoming Lawful Permanent Residents.


Immigrant Visa Categories

Immigrant visas are either subject to numerical limitations or not at all. Visas not subject to numerical limitations are those granted to:
  •  Immediate relatives (children, parents and spouses) of U.S. citizens;
  • Resident aliens returning from temporary visits abroad; and 
  • Former U.S. citizens. 
Most of the immigrant visa applications are made to benefit an applicant who is a child, a parent, or a spouse of a U.S. Citizen. Preceding the commencement of the visa application process, the U.S. citizen relative first has to file a petition with the USCIS on behalf of the beneficiary documenting that the beneficiary is his child, parent, or spouse and obtain approval. It is important that a beneficiary of a petition squarely fall within the definition attributed by the Immigration and Nationality Act in order to be classified as "Immediate Relative" of a U.S. Citizen. According to the INA a "child" of a U.S. citizen is a person who is unmarried, under 21 years old, and be either a legitimate child, stepchild, illegitimate child, adopted child, an orphan adopted abroad, or an orphan coming to the U.S. to be adopted. Likewise, a parent with any of the relationships described under the definition of “child” qualifies as a "parent" to be a beneficiary of a petition. Finally, in order to receive a visa as the “spouse” of a U.S. citizen, the alien must have a "valid and subsisting marriage" with the petitioning U.S. Citizen.The other classification of immigrant visa is those ones subject to numerical limitations. These are visas granted to persons qualifying for family sponsored, employment related, or diversity immigrant visas. There are four categories of family sponsored visa preferences: 
  • Unmarried sons and daughters of U.S. citizens and their children;
  • Spouses, children, and unmarried sons and daughters of legal permanent residents; 
  • Married sons and daughters of U.S. citizens and their spouses and children; and 
  • Brothers and sisters, including spouses and children, of U.S. citizens ages 21 and over. 

There are five categories of employment-sponsored preferences:
  • Priority workers; 
  • Professionals with advanced degrees or aliens of exceptional ability; 
  • Skilled workers, professionals (without advanced degrees), and needed unskilled workers; 
  • Special immigrants (e.g. ministers, religious workers, and employees of the U.S. government abroad); and 
  • Employment creation immigrants or "investors."

Family and Employment-sponsored Applications

Both family and employer-sponsored immigrant visa applications involve a multi-step process and numerous submissions. In the case of a family sponsored visa applications, the process begins with the filing of a petition with the USCIS by the U.S. Citizen or an LPR as the case maybe, accompanied by proof of relationship with the alien relative. If the petition is approved by the USCIS, the second step is for the Department of State to determine if an immigrant visa number is immediately available to the alien, notwithstanding the alien is already in the U.S or not. If the alien is already in the U.S., he or she must apply to change his or her status to that of a lawful permanent resident after a visa number becomes available. If the alien is outside the U.S. when an immigrant visa number becomes available, he or she must then go to the U.S. consulate to complete processing. Applying for employment-sponsored immigrant status requires a similar multi-step process, with the added requirement that the employer must file a labor certification request with the U.S. Department of Labor.Family sponsored and employment related immigrant visas are subject to a complicated system of per-country numerical caps. The U.S. Department of State, Bureau of Consular Affairs, publishes a monthly Visa Bulletin that summarizes the availability of visas subject to numerical limitations, and lists the countries that have filled their allotments.


Diversity Lottery


The “diversity immigration program" provides another, but more limited, method of gaining permanent residence. Under this program, approximately 55,000 immigrant visas are available annually to aliens who are natives of countries determined by the USCIS to be "low admission" countries, that is, countries that are proportionately under-represented in the U.S. immigrant population. To receive a diversity visa, an individual must have at least a high school education or its equivalent, or, within the preceding five years, two years of work experience in an occupation requiring at least two years training or experience.


Non-immigrant Visas
Categories

Non-immigrant visas are divided into nineteen main categories and one special purpose category for NATO personnel. The main categories are given letter designations. They are: A, career diplomats; B, temporary visitors for business and pleasure; C, aliens in transit; D, crewmembers; E, treaty traders and investors; F, students; G, international organization representatives; H, temporary workers; I, foreign media representatives; M, students in non-academic institutions; N parents and children of special immigrants; O, aliens with extraordinary abilities; P, entertainers; Q, cultural exchange program participants; R, religious workers; and TN, for NAFTA professionals.


Visa Waver Program

The "visa waiver program" permits certain non-immigrant aliens from qualified countries to enter the U.S. for a maximum of 90 days without a visa. As of August 2010, there are 36 countries  included in the program. These countries are:Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom.


Refugee and Asylum


Apart from the immigrant and non-immigrant visa processes there is a possibility that a non-citizen or alien, despite being inadmissible on some grounds or having entered the U.S. without being inspected or paroled, may be allowed to resettle in U.S. and be afforded protection, if certain requirements are met. The are two distinct paths each with its own distinct set of procedures and constraints that eventually lead up to attaining a status of Lawful Permanent Resident and then citizenship. These are imprecisely referred as the “overseas refugee program” and “political asylum” processes. The crucial point in both instances is the statutory definition of a “refugee” as provided under Section 101(a)(42)(A) of the Immigration and Nationality law:“. . . any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, . . .”Individuals already physically present in the US may apply for asylum, provided they meet the definition of a ‘refugee’ and are not barred by law from applying for or being granted asylum.To apply for refugee status, on the other hand, the applicant must fit the definition of ‘refugee’ and must be physically located outside the United States.One year after legally being granted asylum or refugee status in the United States, the applicant may apply for a Green Card and eventually for Citizenship.


Legal Help


Immigrant and non-immigrant visas provide opportunities for foreign nationals to come to the U.S. for a wide range of purposes. Some of these visas, such as tourist visas, are relatively easy to secure and require only modest time and effort on the part of the applicant. Immigrant visas and some nonimmigrant visas (particularly those authorizing employment, education, or training), and asylum processes are more complex and may involve extensive petitions, applications, and documentation to demonstrate the alien's eligibility. The assistance of an experienced immigration attorney can help simplify the process for an individual or employer, and can enhance the chance that the application process will result in a favorable outcome.


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