What Makes an Immigrant Illegal?
It really depends. Obviously, the easy answer is if one is here without any type of legal status, having entered the country surreptitiously, maybe by sneaking in; then, obviously, one is an undocumented immigrant. Another way, for instance, is even though you have a facially valid document but if the underlying petition is no longer available, then, again, one can also be considered to be an illegal alien or an undocumented immigrant. So there are so many ways that someone can become – you know, run afoul of the immigration laws and either become undocumented or become illegal by having violated their status.
What Happens if I Lose My Certificate of Naturalization?
A certificate of naturalization, once it’s lost, can be replaced.
There is an application that you can find online at the USCIS website, and it takes anywhere from three sometimes to nine months, depending on how busy they are, to reissue a naturalization certificate. Typically, if someone is sworn in in a big city, they are also sworn in to become US citizens by the court, in the federal district court where they reside. The federal district court also has copies of their naturalization application, which can be obtained from the clerk of the court where they were sworn in.
Another way is, of course, once, usually typically, if somebody applies to become a naturalized citizen and they obtain their citizenship, they will apply for a passport. So a US passport is also proof of being a US citizen. But insofar as the actual certificate, once it’s lost, there really is no alternative but to apply again to get that replaced.
What Is ICE Custody?
ICE stands for Immigration and Customs Enforcement. It’s the law enforcement arm of Immigration. They fall under the Department of Homeland Security, and their job is to apprehend, process, and detain aliens that are here unlawfully or have committed crimes.
Once in their custody, depending on the nature of the crime, one can either request to be bonded out by the immigration judge, if the judge has jurisdiction over one’s case. And if the judge does not have jurisdiction over one’s case, then one can petition the head of that particular ICE office to be either let out on what is called parole, where as long as one can show that you’re not a danger to society, you’re not a flight risk and that the nature of your crime is not too serious to be considered for parole. But that’s usually what happens if one is in ICE detention.
What Happens if My Application Is Denied?
If one’s naturalization application is denied, it really depends on what the reason for denial is whether or not the person can either reapply, and whether it’s denied with prejudice or without prejudice. Essentially, if it’s denied, typically there’ll be a lengthy letter explaining the reasons for the denial and the possibility of appealing that denial within a certain timeframe.
Once an application has been denied, then, within a certain timeframe, the alien can then petition to appeal this adverse decision. And if that is also denied, then in certain circumstances, you can also petition the federal district court to challenge this denial, which is called de novo. So, basically, it’s a brand new application where you can request that the court actually looks at it and you determine whether or not the administrative agency made a mistake in denying the application or not.
Can I Move My Immigration Court Hearing to Another State?
An immigration court hearing can be moved to another state, and this is called a “motion to change venue.” A motion is a written request that one makes, typically through an attorney, requesting that the file be transferred to a different court. However, you have to meet certain criteria that you have to prove to the court why the case has to be moved to a different court, a different city.
One of the reasons why someone, for instance, would want to change the venue from court A to court B: let’s say the alien lives in Houston, but now their family or they themselves are relocating to Los Angeles or to Atlanta. Well, they then want to, obviously, move that case because it would be burdensome for them to have to travel back and forth. So, therefore, you have to carefully accumulate the necessary supporting evidence to show the judge and the court that you’re doing this for expediency purposes because it’s not convenient for you to have to travel, let’s say, from LA to Houston even though now you’re permanently living in LA but your case initially started in Houston.
What Happens at The Interview?
You present yourself, the alien, either by yourself or in conjunction with an attorney. They go through the exam. They review the application and all the questions that are submitted on the application under penalty of perjury. The officer will ask them all the questions. And if they pass everything, then the officer will approve the application.
If an alien applicant is unable to attend the naturalization interview, it’s extremely important that you timely notify the officer that you’re unable to attend, because failure to attend may result in the denial or the abandonment of the application. Typically, the US Immigration Service will send a notice letter to the applicant and ask them why they missed their application or interview date and give them a second chance to reset the case for 90 days.
The swearing-in date is probably the most festive part of the naturalization application. It’s a very nice event, but usually after administering the oath, then the alien applicant has to relinquish their green card and, in exchange, they will get their naturalization certificate. And, essentially, after having read the oath, that’s when they are officially US citizens.
How Are Children Affected Through Applying for Naturalization
Minor children cannot naturalize. One has to be at least 18 years old before one becomes eligible to naturalize. However, if the minor’s parents naturalize while the minors are also permanent residents and have been lawfully admitted into the United States – that means they legally entered the United States and they are also here as permanent residents – then there is a law called the Child Citizenship Protection Act, and it actually relaxes the application procedure, where if one’s parent naturalizes and the child, the minor child, is under 18, that child then will automatically also become a US citizen based on their parent’s naturalization.
What Is the H1B Cap?
The cap essentially is an annual quota that’s set aside. If you are just a brand new employee wanting to apply for an H-1B, then nine out of ten times you are subject to the cap.
If you are working for a nonprofit or if you are working for higher education then you may be not subject to the cap. So that’s essentially in a nutshell what the H-1B cap is all about.
You can begin working on your H-1B petition it just kind of depends on whether you’re kept subject or not kept subject.
You may not start your own company under an H-1B status. It’s a very good question but an H-1B is an employee so at all times one has to be an employee. You cannot set up your own company and then have your own company sponsor you because essentially you and your company are one and the same.
They can start their own business but they cannot use that to really support themselves and support their immigration status.
Can Failure to Register with Selective Service Prevent Attaining Citizenship?
One’s failure as a male applicant between the ages of 18 to 26 to register with Selective Services may very well be a disqualifying factor to apply for naturalization. If you fail to register on purpose and do this willfully, then, yes, that could be an issue insofar as becoming a US citizen. If it’s just an inadvertent omission, or it’s a mistake, or it’s not material and not willful, then it should not be determining factor.
There are procedures where you can actually explain to US Immigration what happened, and this may be taken into consideration either favorably or not.
What Are the Different Types of Immigrant Visas?
The I-140 is specifically set aside for employment-based immigrant visas and it has multiple different availabilities. A J-1 visa is a very broad non-immigrant visa so it does not lead to a green card but it is still a very versatile visa.
The F-1 visa is a visa that is based on what is called a VS duration of status it depends on how long the individual student requires to finish their degree. By and large, the F-1 visa is essentially a student visa.
The H-1B visa is probably the most utilized work visa; it’s a professional visa or called a specialty occupation visa. It’s a visa that has a quota – of 65,000 per fiscal year for those that have a bachelor’s degree, which is the minimum requirement for an H-1B. It’s a work visa that is the most commonly used visa for an employer who wants to temporarily employ a professional in a specialty occupation. One in four people who apply will get it so it’s a very highly sought-after professional visa.
How Does Marriage Affect Citizenship?
If an alien has a green card and they’re married to a U.S. citizen for three years, one can apply to petition the government to become a naturalized U.S. citizen based on the shorter three-year period. Whereas if you’re applying not because you’re married to a U.S. citizen, then you have to wait five years. In that sense, being married to a U.S. citizen does give you the benefit of having a shorter waiting period instead of five years it is only three years.
The relaxed residency requirements that are applicable for naturalization purposes only kick in once the alien applicant has been married to a U.S. citizen for three years while in green card status. It only helps the person once they accumulate the three years. So the length of time is determinative of when the application can be submitted.
If your spouse became a U.S. citizen a month before you get married, the relaxed residency requirements would not kick in quite yet because you have to wait another two years. Having a U.S. citizen spouse just a month before is not quite going to help at that stage, but it will later down the line.
Can an Illegal Immigrant Get Deported for A Misdemeanor?
Houston Immigration Attorney Haroen Calehr elaborates on what may happen if an illegal immigrant commits a misdemeanor.
When one violates the status that one has or one doesn’t have a status at all then of course, as soon as you get into contact with immigration law enforcement there is that specter of the possibility that you can be detained, be questioned, be arrested, or be processed for proceedings or for removal or for deportation.
In immigration law like in criminal law where you have a two-classification system. One is crimes involving moral turpitude, CIMT and then you’ve got the more serious charges and an aggravated felony. And there’s a list under the immigration code and it delineates the various crimes that are what is called aggravated felonies.
If you’re here undocumented then you are always at risk of encountering law enforcement or immigration and being imported. But, of course, that goes up tremendously if you have a misdemeanor conviction or a felony conviction. But there are defenses available and it’s very difficult to answer because it’s basically a fact situation and a case-by-case basis.
Is Past Imprisonment a Bar to Attaining Citizenship?
Past imprisonment is typically not a bar to attaining citizenship unless the severity is high enough to fall under a certain category such as aggravated felony. Typically, the person actually spends five years in jail, and then more likely than not, that would be an obstacle to obtaining citizenship.
A candidate has to be completely honest when applying for naturalization and filling out all the forms. Any type of run-in with law enforcement has to be fully declared on the application. For example, someone may be convicted of a crime and subsequently, their conviction has been expunged. For immigration purposes (which falls under federal law), that conviction still stands. Therefore it still needs to be disclosed on the application.
Having a DUI or a DWI typically in itself is not something that prevents an alien from applying to become a naturalized United States citizen. However, not disclosing this fact may (and most likely will) prevent you from becoming a United States citizen. But simply having a DUI or DWI conviction on its own is not a valid basis for having your naturalization application denied.
What Is the Quota System for Immigration?
In this video, Haroen describes the quota system for immigration and its three parts.
The quota system for immigration is divided into three parts and essentially, it’s a numerical allocation that Congress gives per fiscal year, which cannot be exceeded. Seventy percent of the quote is earmarked for family-based immigration, which are about 480,000 visas or immigrant visas for green cards.
Then you’ve got the business category, which has 140,000 immigrant visas set aside. And then the last one is diversity visas they have 50,000 visas set aside for that category. And again, this runs through the fiscal year. Diversity visas are for nationals of certain countries that are underrepresented in the US and it was initially set up to attract more diversification for the country.
No one individual country can get more than seven and a half percent of the allocated visas set aside in total by Congress. And it’s a system that you can monitor on a monthly basis at the visa bulletin it’s online and you can check whether your priority date, which is your line or your number in the queue has become current, and if it is then that’s the time that you can then apply to obtain your green card.
What Is Naturalization?
Naturalization is the application procedure that is utilized by aliens that want to become US natural citizens. If someone is born in this country, then under the Constitution they are automatically a U.S. citizen, regardless of whether or not their parents were here legally or illegally.
If someone is not born in this country and they have a green card, then under certain conditions they can later apply to become a U.S. citizen and that procedure is called naturalization. It is also possible if you receive your green card through employment or through other means. After 5 years then you can apply to become a U.S. citizen.
Who Is Subject to Immigration Control?
In this video, Haroen explains what contributes to a person being subject to immigration control.
Anyone that has ever traveled outside the country is subject to immigration control because when you’re trying to come back into the country you have to show your passport, whether you’re a citizen or you’re an alien or you just have a green card whatever your condition may be, so that’s number one.
Number two, any person that is applying for a job, at least if it’s done the proper way through their employer has to fill out a form. We don’t have what is called an exit system yet and it’s been widely debated that we do need one. Most countries in the world do have that, whenever you try to exit the country you have to show your passport before you’re allowed to leave or any type of immigration document but primarily a passport. But of course, coming in you always have to show that. So those are the various ways that you can actually be requested to show your status.
What Is Self Deportation?
By and large, self-deportation is any form of departure from the United States that is not sanctioned by the state or by the court. Deportation proceedings are initiated by the government. They are essentially trying to remove an individual from the United States, either because they have no legal status whatsoever or because they are permanent residents, they have a green card, but they violated their status in such a way that triggers an ability to remove this person from the United States.
Then, the steps are taken by filing this document with the court and essentially this gets the ball rolling on deporting someone or placing them in proceedings. It’s almost like getting a traffic ticket and then being placed in front of a judge and a prosecutor, having to defend yourself.
How Do I Become a Legal Immigrant?
In this video, Haroen describes the process of obtaining legal immigrant status in the United States.
As long as you enter the country legally, you’re considered a legal immigrant. If you want to become a legal immigrant that’s the step where you try to apply from a temporary status to a permanent status. And there are various ways to do that. One is US citizen spouse or a parent or an adult child they can sponsor their parents as long as they’re over 21. The other way is through employment if you’ve got an employer and you’re here on a work visa and you’re still in lawful status and the employer now desires to fully employ you on a permanent basis and not a temporary basis they can then take certain initial steps through the Department of Labor and immigration. It’s kind of a lengthy and involved process but they can then sponsor the person, the worker, to become a legal immigrant.
The other way is what is called self-sponsorship. Certain categories are allowed to actually self-sponsor themselves if they have extraordinary ability like for instance, a famous basketball or soccer player, a football player, musician, or person in the art or business. They can actually self-sponsor themselves because they’re considered such an asset to the United States that they don’t really need to prove to the Department of Labor or immigration that they should be given the privilege of living in this country. They can actually petition themselves and as long as they can prove that they have the various requirements then they can actually obtain permanent residency, which is to become a legal immigrant
What Is a Green Card?
Basically, a green card is a document that reflects that you are here in the country lawfully as a legal permanent resident. The document itself is called an I-551 card by immigration. Getting a green card is very cumbersome and it involves a lot of processes. The most common and probably easiest way to get a green card is if you are married to a US citizen then that citizen spouse can sponsor you as long as you entered the country legally. You can check the status of your green card to a limited extent. There is a way to check online at the US government’s website but that’s the easiest way to check for you on whether or not your card is still in the process or not.
Is Deportation a Crime?
In this video, Haroen describes the legality of deportation.
If somebody has been deported and that person has had a type of conviction (a criminal conviction here in the United States called an aggravated felony conviction) then that is a crime.
Also, if a person has just been deported without any crime whatsoever then that can be prosecuted, congress changed the laws in September of ’96 and made deportation more of a streamlined process where they just call it removal now. But of course, it differs whether the person is near the border or at the border or actually inside the country.
If someone is at the border and they’re apprehended within 100 miles of the border they can be what is called expeditiously removed for five years. And that can’t be appealed. Now if you are in the country and you are placed in court proceedings and then deported then typically, you can’t return for 10 years or sometimes permanently but that procedure may be appealed within 30 days of the immigration judge’s decision and that’s called the Board of Immigration Appeals.
When Can Immigrants Claim Benefits?
Usually, illegal immigrants cannot claim benefits, but there are as always in law, there are exceptions. By and large, unless you’ve actually put money into the system then you really can’t derive anything out of it. And the exceptions are once the person becomes a citizen or they themselves work and accumulate 40 credits there can be short-term periods and depending on how much income you make, but usually, Social Security, SSI or Medicare or Medicaid are not available to the average alien. But there are certain programs that do not fall under the prohibition programs that are administered by the state and not by the federal government and those may be available on a state-by-state basis.
Are Immigration Checkpoints Legal?
In this video, Haroen Calehr describes the legality of immigration checkpoints in the United States.
Immigration checkpoints by and large have been held to be legal by the Supreme Court but there are some exceptions. If it’s a fixed border checkpoint within 100miles of the border then they are considered legal. If it’s less than 100 miles, if it’s only 20 miles of the border, then conversely they have said that it’s not considered legal and it’s unconstitutional.
What you have to understand is as a person that’s trying to approach one of these that if you are carrying illicit contraband with you, if you are undocumented then, of course, there is a great likelihood that you are going to get detained and further processed. Because the customs and border patrol people that man these posts they do have the authority to search and seize under the Fourth Amendment. They’ve got dogs that frequently look for drugs, or also humans being smuggled.
When one approaches one of these border checkpoints then it is the equivalent of being at the border and unfortunately, yes, you know, you are subject to searches and seizures and there does not have to be any type of probable cause or reasonable suspicion to do so. Whereas if you’re not at one of these fixed border checkpoints then law enforcement has to have reasonable suspicion or probable cause to actually even approach someone and search their private belongings or their person.