Massachusetts Immigration Lawyer Blog

Boston deportation defense lawyer

In a recent immigration consultation, I faced the following situation:

A young man entered the United States on a visitor visa and then fell out of status after overstaying. His brother gained U.S. citizenship and then filed an immigrant visa petition, Form I-130, on his behalf. The young man suffered from serious health issues, which were covered by MassHealth. So, with these facts, the family asked me whether there was some way to expedite the process of getting a green card for the young man.

In my view, this young man will face at least three major issues when seeking a green card.

First, according to the Department of State's most recent Visa Bulletin, an immigration petition filed on behalf a brother or sister is not likely to become current for a long time--10 years or more! And in the meantime, this young man, as the beneficiary of this petition, couldn't obtain a work permit or social security card. Since he is out of status, he could be put in deportation proceedings. An Immigration Judge could order him to be deported and his pending visa petition wouldn't protect him from being deported. And, regardless of this person's medical condition or other compelling equities, I'm not aware of any way to expedite this sort of case. The time frame is what it is. You are bound by the cruel reality of the visa bulletin. In immigration law, as in many other areas of life, no short cuts exist.

Second, since this person is out of status, he has accrued unlawful presence. Therefore, even if he were properly admitted and inspected into the U.S., he would be inadmissible and, thus, wouldn't be able to obtain a green card within the U.S. One exception to this ground of inadmissibility would be for what is called 245(i) cases. But 245(i) requires that the visa petition be filed on or before April 30, 2001.

Third, once the priority date for this visa petition becomes current, since this person can't obtain a green card through adjustment of status, he would have to consular process, i.e, seek an immigrant visa at a U.S. consulate abroad. But if he were to leave the U.S., his unlawful presence would render him inadmissible and, therefore, result in the denial of his immigrant visa application. To cure the inadmissibility, he would need an immigration waiver, Form I-601. To qualify, he would have to have a U.S. citizen anchor relative and show that his U.S. citizen immediate relative would suffer "extreme hardship" if he weren't allowed to return back to the U.S.  Of course, successful waivers are challenging to prepare.

For more information about how to get a green card through a family member or if you need advice or guidance on other immigration issues, call me and set up a time to meet.

Boston, MA Deportation Defense Attorney

As an immigration lawyer, I frequently meet with people who have entered the United States without a visa or without being inspected by an immigration officer at an airport or border. Such people have sneaked their way into the United States and now they seek a green card or some other legal status. We immigration lawyers refer to this class of people as EWIs (entry without inspection).  What immigration options are available to someone who has no proof of being properly admitted and inspected upon entry into the U.S.?

One common path to permanent residency status is through marriage to a U.S. citizen. But U.S. immigration laws only allow someone to get a green card or become a permanent resident through adjustment of status if they can prove that they entered the U.S. with a valid visa. Proof of entry requires an I-94 record of entry, which is why this little piece of paper might be the most important document for your green card case.

If you haven't entered the U.S. with a visa and with inspection by an immigration officer, and are not required to appear in Immigration Court before an Immigration Judge, your immigration options are mostly limited to:

245(i): you can get a green card through marriage, a family member or through employment even if you entered without inspection, overstayed your status or worked without authorization, if you can take advantage of 245(i), which requires you to have been the beneficiary of an approvable labor certification or visa petition (I-130, I-140, I-360, I-526), which was filed on or before April 30, 2001 and were physically present in the U.S. on December 21, 2000. USCIS requires a fee of $1,000.

TPS: Temporary Protective Status is available for people who entered the U.S. without inspection. Although TPS is not a green card and doesn't lead to permanent residency status, those with TPS are eligible for employment authorization, work permits, and may not be deported. TPS is only available for certain nationals of Haiti, El Salvador, Nicaragua, Somalia, Sudan and certain other countries designated by the Department of Homeland Security.

VAWA: The Violence Against Women Act or VAWA provides a path to a green card for victim of an abusive U.S. citizen or lawful permanent resident parent or spouse even if they entered the U.S. without inspection or parole.

Asylum, Withholding of Removal, and Convention Against Torture: these persecution-based forms of immigration relief are for people who are afraid to return to their country of origin. Proof of proper entry and inspection isn't required.

Cancellation of Removal for Non-lawful Permanent Residents:  You can obtain a green card by applying for cancellation of removal in Immigration Court before an immigration Judge if you have been continuously present in the U.S. for 10 years, can demonstrate good moral character, and can show that your deportation would cause "exceptional and extremely unusual" hardship to a U.S. citizen or lawful permanent resident spouse, child or parent.