Q. If the visa in my passport expires, am I in the U.S. illegally?
A. No. The visa in your passport does not determine your status. The admission stamp or the I-94 controls the authorized period of stay. You can extend your stay or status in the U.S. and still have an expired visa in your passport. Critically, if you do leave the U.S. after the visa expires, you will need to obtain a new visa before you will be permitted to re-enter the U.S. This can subject foreign nationals to higher levels of security checks and slow down the issuance of the new visa. Check with our office before you depart.
Q: My Green Card is expiring, what do I do?
A: If your green card was valid for two years, you were admitted as a conditional resident. There is a specific filing procedure for conditional resident cases. Our office routinely represents couples and individuals in these cases. If your green card was valid for ten years, you should file a Form I-90 with the appropriate USCIS service center. You may also be eligible for naturalization. However, if you have been convicted of a crime, or even arrested and had the case dismissed, you should retain an attorney to advise you regarding your rights. Many criminal convictions can trigger deportation proceedings; even ten years after the fact. Please contact us prior to engaging in a course of action that could affect the rest of your life and your families.
Q: My fiance/spouse is illegal and I want to fix his/her papers, what can I do?
A: Based on the current state of the law, there are generally three avenues to obtain permanent resident status without having to leave the country.
- If the foreign national entered the U.S. at anytime fearing persecution from the their native country, they can apply for asylum, withholding of removal and withholding of removal pursuant to the Convention Against Torture.
- If the foreign national has been physically present in the U.S. for over ten years, they might be eligible for Cancellation of Removal. This application can only be presented while in deportation proceedings and is very difficult to get granted.
- If the foreign national was physically present prior to December 31, 2000 and a relative filed a petition on his/her behalf (or there was a properly filed labor certification) prior to April 30, 2001, they might be eligible for adjustment of status pursuant to INA 245(i).
While this list is not exhaustive, it does represent the three primary avenues. If the foreign national is not eligible for any of the above, then usually they must leave the U.S. and return through the U.S. consulate of their native country. Generally this process will necessitate a waiver of the two indiscretions; entering without inspection and accruing unlawful presence. This waiver is discretionary and requires a showing of an "extreme hardship" on a qualifying relative.
Q: What rights do foreign nationals have in deportation or removal proceedings?
A: Most importantly, the Fifth Amendment guarantees the right to Due Process. Foreign nationals have the right to legal representation throughout the process; at their own expense. Additionally, the Immigration and Nationality Act requires the Department of Homeland Security to prove removability by “clear and convincing evidence.” Finally, foreign nationals are entitled to examine the government’s evidence and cross examine government witnesses. (This list is not exhaustive.)
Q: What obligations do foreign nationals have in deportation or removal proceedings?
A: All foreign nationals in removal proceedings must appear at all scheduled hearings. Foreign nationals must inform both the Immigration Court AND the Department of Homeland Security as to their current address. Failure to do so could result in the immigration judge ordering their removal in their absence.
Q: What happens during removal proceedings?
A: The government must prove the foreign national is subject to removal. The immigration judge will review the evidence supplied by the government and make a determination whether or not they have sustained their burden of proof. Even if the judge determines the foreign national is subject to removal, the proceedings do not end. Foreign nationals may apply for relief from the removal order via adjustment of status, cancellation of removal, asylum, or a waiver of criminal conviction via 212(c).
Q: What are some of the avenues the government can remove foreign nationals?
A: Foreign nationals are subject to removal for a variety of violations including but not limited to convictions of certain crimes specified in the Immigration and Nationality Act, overstaying their authorized stay (generally determined by the I-94) or entering without inspection by an immigration officer.
Q: What should I do if I receive a Notice to Appear (NTA)?
A: This is the beginning of the removal process. Seek counsel with a qualified attorney.
