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Ten Essential Questions Every Immigrant Should Understand

By Carlos A. Batara


A few weeks ago, I was invited as an immigration attorney in Escondido to serve as the guest speaker at a community event.

I was asked to address issues often overlooked or minimized by immigrants hoping to win legal status in the United States.

Here’s my top ten list.

1. When Should You Ignore A Request For Additional Evidence?

This is one of the most basic errors that I see immigrants make over and over again when trying to win permanent residence status.

Some clients confuse the government’s request for more evidence as a denial notice.  Or they simply ignore it, thinking they have sent all the information the government requires and the  problem will simply disappear and go away.

Actually, the government does clients a favor when it requests more evidence. Clients are given a second chance. The request usually lets clients know what the government wants from them. At times, clients will need assistance responding to these requests because the evidence is not easy to locate or find.

What happens when the government’s requests are ignored?  The application will be denied.

Yet, even when a client’s application is denied, the client should not give up.  Quite often, the problems can be corrected with a new filing.  Other times, immigrants may have to file an appeal, a motion to reopen, or if issued a Notice To Appear at Immigration Court, file a new application.

In the majority of such cases, the headaches, time lost, and money spent can be avoided with a little attention at the outset.  You should never ignore a request for additional evidence.

2. How Should Immigrants Attempt To Overcome 10 Years Of Unlawful Presence?

Clients often ask about getting papers under a 10-year program.

Many people think about this time limit as being some sort of amnesty program. There is no amnesty program and there never was a true amnesty program.

In other words, there is no such 10-year program.

However, for various types of “forgiveness” applications, 10 years living in the U.S. as an undocumented immigrant and accruing unlawful presence is a crucial benchmark.

For spouses of U.S. citizens who apply for permanent residence, the 10 years are a major blemish. They have to return to their country of birth and they face a lifetime bar from ever being able to legally live in the United States.

Permission to reapply for admission is possible after the immigrant has remained outside the U.S. for ten years after the date of their last departure.

On the other hand, if these same spouses remain in the shadows and are apprehended one day by immigration agents and sent to immigration court to face deportation charges, without ten years of unlawful residence in the United States, they do not qualify to seek a green card through Cancellation of Removal.

Neither option is ideal.

3. Who Can Grandfather You Through An Old Petition For Permanent Residence?

Despite divorcing your first husband many years ago, the immigrant visa petition he filed for you may enable you to bypass consular processing and seek permanent residence without having to leave the U.S. and earn a waiver.

Under a provision known as “grandfathering”, your former spouse’s petition can protect you whether you entered without inspection, you have been out-of-status for several years, and you worked without authorization.

At the present time, this rule only applies to petitions filed before April 30, 2001.

Yet, even if the petition was not approved, but was approvable when filed, you can qualify to take advantage of this grandfathering protection.

You should also note that any petition filed on your behalf – by a parent, child, sister, or brother – before the cut-off date can potentially serve to “grandfather” your new petition.

4. Do You Qualify Under Country Cross-Chargeability For Visa Purposes?

When immigrant couples seek permanent residence at the same time, the processing of their applications are based on the principal applicant’s country of birth. Under the rules of cross-chargeability, they can the visa from the dependent immigrant’s country of birth.

The effect of this rule is that it speeds up their immigration cases.  Consider the situation where the principal applicant, the husband, is from the Philippines and the wife is from Paraguay.  Because Mexico has a long backlog, the wait for his priority date to become current will be many years.  Under Paraguay, the wait will be much shorter.  By charging their visas to Paraguay, they can reduce their wait to move forward with their permanent residence applications.

5. Can A Western Hempisphere Priority Date Speed Up Your Green Card Process?

Western Hemisphere immigrants – which includes immigrants from both North and South America, as well as from the Caribbean Islands – were not subject to the same categories of admission as Eastern Hempishere immigrants, and they were not subject to per-country limits, if they registered and qualified for immigration benefits before January 1, 1977.

That was 40 years ago.  How can this help you today?

If a parent filed an immigrant petition for you by the January 1, 1977 date, and you were under 21 and not married at that time, you can possibly “recapture” and use your father’s Western Hemisphere priority date.

In addition, even if you were not born before January 1, 1977, you can still qualify to use a Western Hemisphere priority date as long as your mother and father were married on the date when the immigrant petition was filed.

This means, if you fall under the Western Hemisphere priority date rules, you can proceed forward to filing for a green card immediately.

6. Can Your Filing Status As A Child Be Preserved Despite Government Delays?

One of the most frustrating aspects of the permanent residence process is how long the application process takes. Sometimes, these delays cause children, under 21, to “age out” and lose their eligibility for green card status.

Under the Child Status Protection Act, an immigrant can retain child status, past his 21st birthday, by the number of days his visa petition was pending.

Two dates are important for this calculation. (a) The date when the petition was received by USCIS. (b) The date of the petition’s approval. Then subtract (b) from (a). The number of days are then added to immigrant’s 21st birthday, and the new date becomes the immigrant’s “adjusted” 21st birthday.

7. When Is Citizenship Through Your Grandparents Possible?

Most immigrants do not look past their parents to determine if they are eligible for permanent residence. This is a short-sighted approach.

Maybe you’re really a U.S. citizen.

With the relative ease of entry into and exit from the United States until the late 1980s, a large number of children of U.S. citizens were born abroad. In several cases, the child’s U.S. citizenship status was never claimed or known by the child.

Decades later, the child became a parent. One day, by chance, his offspring learns about the citizenship of her grandparent.  She begins a quest to find out more.

And in some cases, under the Doctrine Of Double Constructive Retention, the grandchild figures out that she can still claim their own status as a United States citizen through her grandparent.

8. Why Are Hardships Of Non-Qualifying Relatives Crucial To I-601 Waivers?

Many immigrants, who are married to U. S. citizens, have lived in the United States without permission more than 180 days. In legal terminology, they have accrued unlawful presence. As a result, they have to return to their home country to seek permanent residence.

To re-enter the United States, they must win an I-601 waiver based on extreme hardship to their qualifying relatives, which is limited to U.S. citizen or permanent resident spouses and parents.

And to prove extreme hardship demands a showing of harm that the qualifying relatives will suffer in substantially different and more severe ways than that which would ordinarily be expected from the immigrant’s deportation.

So how does an immigrant differentiate their case from other immigrants?

By expanding the showing of hardship to include the indirect hardships of a qualifying relative caused by the direct hardships to non-qualifying relatives.

9. Can An Abused Spouse Qualify For VAWA Despite Being Divorced Over Two Years?

Under the Violence Against Women Act, immigrant victims of domestic violence and abuse can self-petition for a green card. To qualify, they must be married to a U.S. citizen or lawful permanent resident spouse, or divorced less than two years.

If they are placed in immigration court proceedings, even after losing their VAWA case, they can seek relief under VAWA at immigration court under a different set of rules.

The victim’s divorce may have taken place more than two years ago. Or if there was abuse perpetuated on a child of the couple, the immigrant parent can still seek a green card under VAWA even if the parents were never married.

10. Are You An Undocumented Immigrant Senior Who Qualifies For Registery?

This little known program can be a Godsend for undocumented immigrant seniors.

Possibly like your parents or grandparents.

Over the 20+ years of my career as a permanent resident lawyer, I have met and had the good fortune to help many elderly immigrants win green cards through Registry – elderly immigrants who did not know they could qualify for legalization primarily by virtual of their U.S. residence.

Did you know there are an estimated 50,000 undocumented immigrants over the age of 55 and another 150,000 are over 65 living in the U.S.?

That’s a large pool, most of whom have never heard of Registry.

So what’s Registry?

In a nutshell, under Registry, immigrants who have lived in the United States since 1972 are eligible to seek permanent resident benefits.

It does not matter how they arrived – whether they crossed the border without proper documents or entered on a tourist visa and decided to remain here.

The toughest part for many Registery applicants is proving they lived in the United States continuously since 1972.

(Major criminal offenses, of course, are a problem for Registry applicants, as they are for immigrants who seek permanent residence benefits under any immigration program.)

Better yet, if applicants are granted permanent residence, their green cards are backdated to January 1, 1972. This allows them to immediately apply to become naturalized citizens.

A Closing Thought

Before closing, I strongly encourage you to remember these ten questions if you or your loved ones ever need legal help.

You’ll be far ahead of most other immigrants and perhaps miles closer to immigration success.

Ready to take a serious and honest look at the strengths and weaknesses of your immigration case? Let’s get started with a personalized strategy and planning consultation . . .

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