Your Options, and How to Avoid Being Scammed
Most of my conversations with clients and prospective clients have to do with attaining a green card, a visa of some type or citizenship. I know from these conversations there is a lot of confusion out there. I want to give people a general overview of the US Immigration laws, illegal immigration facts, and to answer their immigration questions. I have to start by saying that this article will merely scratch the surface. It would take a book to deal with every possible avenue available to you, and always advise that you seek an attorney experienced in immigration law to fully know your rights.
The US Citizen
This category is obviously the prize that most want to obtain. Once you are a US Citizen it is almost impossible to take it away. I say almost because there are two situations where it can be. First, if you lied to obtain it, and second if you voluntarily give it up. You can give it up by just signing a document renouncing your allegiance to the US. This could happen if you get citizenship in another country, so be careful what you sign. Again, seek an experienced immigration attorney in this situation, even if you are a US Citizen.
The Lawful Permanent Resident (Green Card holder)
This is the second most valuable prize in the immigration world. It is pretty close to the benefits of citizenship. The downsides are that it is a little easier to lose, you cannot vote, and it is generally harder to sponsor relatives. In addition to the ways you could lose your citizenship, your green card could be taken away if you just stay outside the country for six months or a year. I wrote an article on this on the website called “How Do I Keep My Green Card?” Also, if you commit certain serious crimes you could lose you green card.
Usually, you can move up to citizenship if you have had a green card for five (5) years, or three (3) years if you got it through marriage to a US Citizen and are still married and living with that person. Be careful. If you have criminal issues, have had extended absences from the US, or had issues in your green card filing, these things could cause you trouble in a citizenship application. In rare cases, these problems can cost you your green card. Again, seek an experienced attorney when filing with United States immigration services to become a citizen.
The Alien Present on a Valid Visa and Still In Status
There are 50+ visas out there and I cannot, in this article, detail where you can go from each one. As a general rule, you can move from one visa to another, or to a green card, PROVIDED YOU QUALIFY FOR THE VISA (OR GREEN CARD) YOU APPLY FOR AND YOU DO NOT HAVE ANY BREAK IN STATUS! The second part is key. For example, if you are on a tourist visa and want to file for a work visa of some type, one (1) day out of status will prevent you from doing so. For this reason, I advise all of you to stay in status, meaning do not stay beyond the date on your I-94 (if you have one) without applying for an extension.
This brings me to another key point. Most of my clients come in on a tourist visa. These are usually valid for ten (10) years. However, that does not mean you can stay here for ten (10) years on one entry. People with this visa get an I-94 on entry and are usually given six (6) months. That is when you have to leave (or apply for an extension or change of status). If you are one day late, you violated your status and Immigration and Naturalization Services punishes you by cutting off many of your options.
An Alien that entered legally, but is out of status
Most of my clients and potential clients are here. They came on a tourist visa but are out of status for weeks, months, or even years. Your options are very limited. You can get a green card (adjust your status) through an immediate family member US Citizen only. An immediate family member is either a child over the age of twenty one (21), a spouse, or a parent if you are under 21. This is where the most known, US immigration marriage visa would be used. You also have options through the court referenced in the next category but they are usually long shots that have high risks of deportation.
In this status you cannot adjust to another visa. This means no work visas, tourist visas, etc. I get the question several times a week from clients in this status “My brother-in-law owns a business, so can’t he sponsor me?” NO! If you are out of status you’re “punished” by having all those options cut off from you.
This category is the second most scammed category of aliens as well. It breaks my heart to see immigrants come to my office who have gone to another attorney or non-attorney that filed for some type of work visa. Some of them even got work authorization before their application was denied. When I ask what they paid for the service I usually get a number of around $10,000. First, that fee is ridiculously high for most types of visa or green card application outside of court, and second the person they hired probably knew they would have no chance of success. These scammers bet on either being out of town when the denial comes, or that the intending immigrant will be too afraid to complain to the authorities. They use terms like immigration specialist and others to lure you in. Many of the victims that come into my office went to attorneys and were lured by a free consultation with an immigration lawyer. Free does not always mean good. A small consultation fee could save you thousands in the long run. A good lawyer is also not afraid of a client seeking a second opinion. I advise my clients to look for an immigration attorney that is a member of the American Immigration Lawyers Association or AILA. I have yet to meet a good immigration lawyer that is not a member of AILA and their website, http://www.ailalawyer.com/, can give you a list of attorneys.
Aliens that entered without inspection (illegally)
Before I start with the illegal entry category, it needs to be determined if the alien truly entered without inspection. There are cases where a person does not have a stamp in a passport, but testifies that they were in the back seat of a car and spoke to a border officer at a crossing. It is rare, but if an entry is determined to be inspected, you “bump up” to the prior category. An experienced immigration attorney can help you determine this. If this happens, you may go from a case with a 30% chance of success to one with better than 90%.
Assuming that you made an uninspected entry, this is the most limited category of options. It is also the most scammed. DO NOT BELIEVE ANYONE THAT TELLS YOU THAT YOU CAN FILE A SIMPLE APPLICATION WITH USCIS AND GET A VISA OR A GREEN CARD IF YOU ARE IN THIS CATEGORY. Again, there is no way I could detail every way you might get relief from removal in this category in this article. I can only give you general information.
If you filed for certain types of relief before April of 2001, you may have qualified for the amnesty program at that time and can continue the application. Right now there is no amnesty so you have to have filed back in 2001 or before. There are a few clients I see in this category but they get rarer as time goes on.
There is an asylum application. My paralegal, Ruth Shalom, used to process these when she worked for USCIS many years ago. In every conversation I have with her about this, she reminds me about how few of them she approved. They are very difficult. If you are denied you will wind up in court with the government trying to remove you. You will likely get another bite at the apple, but again these cases are difficult. There was a recent NY Times article that over 80% of asylum applicants were denied in the El Paso court and more than 50% of them elsewhere.
The only other remedies available to you are through the courts. Sometimes I have to file an application for a client I know will fail in order to get them into court. I, of course, get the clients approval and explain this to them before I do this. Other times clients come to me already being in theimmigration court system. My associate, Jonathan Gordon, Esq., wrote an article on the immigration courts called “I Just Got an NTA…What should I Do?”. Mr. Gordon’s role in this practice is primarily dedicated to immigrants in the courts and he is great resource with deportation information.
I want to end my description of this category by telling you how difficult it is to get a green card through the court, or some other type of relief from removal. The “good” remedies have around a 50% success rate. The more difficult ones have 10% success rates or less. Approximately 3% of all green cards are issued through the court. In other words 97% get them through other means. Understand that the immigration courts are part of the immigration deportation process and most immigrants that are in the court system wind up deported. There are some easy cases where there is a legal entry. With an illegal entry your chances are usually less than 50%. Generally, I only explore the court remedies with a client that has no other option.
My primary goal in this article was to keep you from getting scammed. Read the section carefully that describes your current status. If someone tells you something very different than what you read here, question it. Seek a second opinion and maybe a third opinion. Don’t believe someone that tells you something that sounds too good to be true. Also, run away from a provider that wants you to lie on an application to obtain an immigration benefit; it is not worth the risk, especially with the possibility of more favorable immigration laws in the future. I have seen far too many people who are in a bad situation that was made worse by an unscrupulous person who twisted the latest immigration news into a scam. Not only are they poorer in the end, in many cases their immigration status is worse than if they did not file a case at all. At Toscano and Associates, we can help YOU make these difficult decisions by educating YOU and allowing YOU to decide how to proceed.
Thomas N. Toscano, Esq. is a licensed New York attorney practicing just outside of New York City. He services clients across the United States and his practice is devoted to immigration law.