Helen Ramirez, Author at Immigration Attorney in New Jersey

DACA – Deferred Action for Childhood Arrival

Deferred Action means that U.S. Immigration officials will not place you in removal proceedings, so long as you do not commit crimes or pose a threat to the security of the country.

If you qualify for Deferred Action for Childhood Arrivals (DACA), then you would be eligible for a period of two (2) years, and you could apply to renew the Deferred Action. If you qualify, you will also be eligible to receive Employment Authorization while you have Deferred Action.

You might be eligible to apply for Deferred Action for Childhood Arrival (DACA) if:

you were under the age of 31 as of June 15, 2012;
came to the United States before reaching your 16th birthday;
Have continuously resided in the United States since June 15, 2007, up to the present time;
Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

It is usually advisable to obtain a competent immigration attorney to provide legal representation.

The information contained on this page is for educational and informative purpose only. This response does not constitute legal advice. The readers of this information should not act based solely on information contained herein.

If you would like more information please contact us at 908-442-6792.

U Visas

What is a U-Visa?

An Employment Authorization Document will be included with all approved petitions, which can be shown to any employer to obtain a Social Security Number to start work legally. The U-Visa provides employment authorization and the opportunity to change to a non-immigrant legal status. After three years you can apply for permanent residency. There are different requirements that must be satisfied before an application can be submitted. The applicant must have suffered substantial physical or mental abuse due to a criminal activity in at least one of the following categories: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, hostage situations, peonage, false imprisonment, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.

All petitions must include information on how the victim can assist government officials in learning more about the crime including investigation and/or prosecution of the individual(s) that committed the crime. The victim must also be willing to work with local law enforcement. The crime must have occurred in the United States or in a U.S. territory, or violated U.S. law.

The form that must be submitted to USCIS “Form I-918” must be certified by a Federal, State or local law enforcement agency, such as a prosecutor or a Federal or State judge in charge of the investigation in which the petitioner is the victim. Without this certification, the U visa petition cannot be submitted. However, a certification alone is not enough to establish eligibility as all facts around the petition will be considered. The certifying individual must be the head of the agency or a person designated to issue U nonimmigrant certifications. If at any point the victim stops to cooperate with law enforcement, the certification can be withdrawn.

The first step is to determine whether you are eligible for a VAWA self-petition or a U-Visa. It all depends on the circumstances. There are some cases where you should apply for a U-Visa even if you are eligible for a VAWA and vice-versa. In order to speak confidentially about your case, please contact us to schedule a consultation.

If you would like more information please contact us at 908-442-6792.

VAWA – Violence Against Women Act

Many individuals who are victims of domestic violence remain in an abusive relationship because they believe that their immigrant status in the United States depends on their abuser’s status. The victim believes that if the relationship ends, s/he will not be able to gain legal status.

However, this is not always true. If you are eligible to apply for permanent residency based on your spouse’s status, you can go through the residency application process without notifying the abuser. If you present the required evidence to prove that you are victim of domestic violence, physical, emotional and/or mental, then you can receive permanent resident status.

VIOLENCE AGAINST WOMEN ACT (VAWA) & U Visas

There are two main options available for victims of domestic violence.

VAWA self-petitions; and
U-Visas.

What is VAWA?

In 1994 Congress passed the Violence against Women Act creating special routes to immigration status for certain battered noncitizens. Among the basic requirements for eligibility, a battered noncitizen must be the spouse or child of an abusive U.S. citizen or permanent resident. Through a self-petitioning process, the battered spouse/child may apply for immigration status without the knowledge or involvement of the abuser. Derivative status is available to certain children and parents of the principal immigrant.

If eligible, Form I-360 Self-Petition (VAWA petition) is filed with supporting documentation. There is extensive evidence that must be gathered including evidence of battery/abuse/extreme cruelty and proof of the qualifying relationship to the abuser. Immigrants who can establish the basic requirements outlined below will be given a “prima facie” determination and then be eligible for certain public benefits. If the VAWA petition is approved, the immigrant is granted deferred action status in most cases. Deferred action means that removal, or deportation, proceedings will not be initiated. Applicants are also eligible for work authorization upon approval of their VAWA petition.
Once the VAWA petition has been approved, immigrants are classified into categories based on a preference system. Self-petitioners who are immediate relatives of U.S. Citizens (spouses, parents, unmarried children under the age of 21) are eligible to adjust status to a lawful permanent resident status when their VAWA petition is approved. Spouses and children of lawful permanent residents must wait for an immigrant visa to become available for their category. These petitioners will be able to obtain work authorization until they are eligible to apply for permanent residency.

What is a U-Visa?

In October 2000, Congress created the Victims of Trafficking and Violence Prevention Act (Act). Finally, after seven years of interim rules, the U.S. Citizenship & Immigration Service (USCIS) has published final Regulations on U Visa’s, which became effective October 17, 2007. The U visa applies to immigrants who are the victims of certain serious crimes and who have cooperated with authorities in the prosecution of the perpetrator. The U visa is a nonimmigrant visa and only 10,000 U visas may be issued every fiscal year. The purpose of the U visa is that it gives victims of certain crimes temporary legal status and work eligibility in the United States for up to 4 years. Family members may also be included on the petition including spouses, children, unmarried sisters and brothers under 18, mothers, fathers, as well as stepparents and adoptive parents. An approved U visa petition will automatically grant the applicant work eligibility in the United States. An Employment Authorization Document will be included with all approved petitions, which can be shown to any employer to obtain a Social Security Number to start work legally. The U-Visa provides employment authorization and the opportunity to change to a non-immigrant legal status. After three years you can apply for permanent residency. There are different requirements that must be satisfied before an application can be submitted. The applicant must have suffered substantial physical or mental abuse due to a criminal activity in at least one of the following categories: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, hostage situations, peonage, false imprisonment, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.

If you would like more information please contact us at 908-442-6792.

Deportation and Removal

Prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), the legal process of deporting a foreign national was called “deportation” proceedings and concerned a foreign national who was already present in the U.S. At that time, there also existed a procedure called “exclusion”. “Exclusion” concerned a foreign national who was trying to gain admission into the United States.

Following the enactment of IIRAIRA, both deportation and exclusion are now referred to as “Removal” proceedings. Besides an Immigration Judge, an officer of United States Customs and Border Protection can summarily remove a foreign national from the United States without a hearing before an Immigration Judge. If a foreign national is at the United States border and found to be removable, he or she will either be turned away at the border or if at an airport will be placed on the next flight to his or her native country.

If the foreign national is within the U.S. and receives an order of removal from an Immigration Judge, if that person is not already in Immigration detention he/she would have to leave the U.S. immediately. Those who are already in Immigration detention and receive an order of removal from an Immigration Judge are generally escorted under safeguards by U.S. Immigration officials to their native country.

The difference between inadmissibility and deportability

Inadmissibility: An individual’s inadmissibility for entry into the United States can be determined at the United States border or entry point by officers of the U.S. Customs and Border Protection (CBP).

For those individual’s already in the United States who may be deportable, those determinations are made generally in Immigration Court before an Immigration Judge.

With the enactment of IIRAIRA, proceedings to determine inadmissibility and deportability are now known as removal proceedings, and there is not really a distinction anymore between the two concepts. If someone is determined to be removable, therefore, they are subject to receiving a removal order and must leave the United States. In instances of inspections at the United States border, however, foreign nationals can in fact be determined “inadmissible” and will not be allowed entry into the United States. Those individuals are generally either allowed to withdraw their applications for admission into the United States or are simply denied entry into the United States and must immediately depart.

DEPORTATION FROM THE UNITED STATES

Who can be deported/removed for what reasons?

Any person who is not a U.S. citizen can be deported from the United States. The most common reason a permanent resident is removed from the United States, for example, a conviction of a serious drug offense or murder. That person can be deported to their home country.

The most common reason non-permanent residents are deported/removed is because they entered the United States without inspection or without valid entry documents, or because they entered legally on some type of visa, but then overstayed the period of time they were authorized to remain.

Crimes that make one deportable

The following types of crimes can make a person deportable from the United States:

Crimes of Moral Turpitude (or the admission of such crimes). A crime of moral turpitude involves a crime that has been defined or considered to be a crime that involves in itself a morally reprehensible and intrinsically wrong conduct or acts, such as assault, aggravated battery, carrying a concealed weapon with intent to use it, child or spousal abuse, disorderly conduct, aggravated driving under the influence, kidnapping, murder and involuntary manslaughter, unlawful restraint, robbery, threats and terroristic threats, adultery, lewdness, prostitution, rape, arson, blackmail, larceny, burglary and
Embezzlement;
Drug offenses;
Money laundering;
Two or more offenses, if the aggregate confinement sentence imposed is 5 years or more;
Prostitution;
Significant traffickers in persons; and
Serious crimes committed by diplomats or other persons who have been granted immunity from prosecution.

Parties in a deportation/removal case?

Since the passing of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”), there is no longer a distinction between the terms “deportation” and “removal”. As such, deportation cases are now known as a “removal proceedings.” Accordingly, the key parties in a removal case are the same as those in a deportation case, as stated above:

The Respondent- this is the person who is facing a deportation case, who is accused of violating the immigration laws of the United States, and is therefore subject to a possible deportation at the Immigration Court.
The Immigration and Customs Enforcement (“ICE”) officer in charge of the Respondent’s case- this person works for ICE and is the officer in charge of the Respondent case when the Respondent has been detained by ICE. This person has the authority to supervise the Respondent’s case, particularly while the Respondent is detained, and can make decisions such as whether the Respondent can be released either on bond or an order of supervision.
The Chief Counsel (or Assistant Chief Counsel): is the attorney that represents the United States government in the Immigration Court. This attorney’s duties are like those of a prosecutor, who is in charge of enforcing the Immigration Laws, and seeks to prove that the Respondent is deportable or excludable from the United States.
The Immigration Judge: is the Trier of fact in the Immigration Court, which is known as the Executive Office of Immigration Review. The Immigration Judge has the responsibility to review and adjudicate the facts and evidence presented to rule if a person is or not deportable from the United States and if the person is eligible for a remedy that will stop the deportation proceedings and give the person legal status in this country.
The Immigration Attorney- this is an attorney representing the interests of the responsible for representing the Respondent in Immigration Court. This person defends the Respondent against deportation.

If you would like more information please contact us at 908-442-6792.

Refugee/Asylum

Refugee status or asylum may be granted to people who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion.

Refugee

Refugee status is a form of protection that may be granted to people who meet the definition of refugee and who are of special humanitarian concern to the United States. Refugees are generally people outside of their country who are unable or unwilling to return home because they fear serious harm.

The Immigration and Nationality Act defines “refugee” in Sec. 101(a)(42) as:

(A) any person who is outside their country of origin/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, or

(B) in such circumstances as the President after appropriate consultation (as defined in section 207(e) of this Act) may specify, any person who is within the country of such person’s nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The term “refugee” does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. For purposes of determinations under this Act, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

A person may seek referral for refugee status only from outside the United States. Under United States law, a refugee is someone who:

Is located outside of the United States;
Is of special humanitarian concern to the United States;
Demonstrates that they were persecuted or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group Is not firmly resettled in another country; and
Is admissible to the United States

A refugee does not include anyone who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.

Asylum

People come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution due to:

Race
Religion
Nationality
Membership in a particular social group
Political opinion

Asylum status is a form of protection available to people who:

Meet the definition of refugee
Are already in the United States
Are seeking admission at a port of entry

You may apply for asylum in the United States regardless of your country of origin or your current immigration status.

If you would like more information please contact us at 908-442-6792.