Green Card Through Cancellation of Removal (Non-LPR): Do You Who Qualify?

If you've been living in the U.S. unlawfully for a long time (over 10 years or more without interruption) and have been placed in removal (deportation) proceedings, you may be able to obtain permanent resident status and stay in the country. This would be under section 240A(b) of the Immigration and Nationality Act (INA) and under the grounds of your marriage to a US citizen.

What Is a Cancellation of Removal/Deportation?

1. Cancellation of Removal/Deportation is a limited form of relief for certain permanent residents and non-permanent residents
2. It is available to certain undocumented residents who are in removal proceedings before an immigration judge
3. If the you (undocumented resident alien) have been in the U.S. continuously for at least ten years
4. Are of good moral character
5. Can establish that your removal would subject a lawful permanent resident or U.S. citizen, who is an immediate family member, to exceptional and extremely unusual hardship
6. Upon review of the evidence, the Immigration Judge may cancel the removal proceedings and grant you a permanent residence or Green card

Please Note: If you are a Legal Permanent Residents who has been convicted of certain crimes and subsequently put into removal proceedings, you may also be eligible for Cancellation of Removal/Deportation if you were present continuously in the U.S. as a legal permanent resident for 7 years and were not arrested and convicted of a crime within your first five years of residency.

Who is Eligible for Cancellation of Removal/Cancellation of Deportation?

A nonpermanent resident alien that can establish the following is eligible to apply for cancellation of removal/deportation:

• Demonstrate that the alien has been in the U.S. for at least ten years
• Is of good moral character has not been convicted of specified criminal offences
• Alien's removal would result in exceptional and extremely unusual hardship to a spouse, parent or child who is a legal permanent resident or U.S. citizen

Please Note: Currently, an alien is only eligible to apply for Cancellation of Removal/Deportation once. Therefore if the cancellation is denied, or if the alien ever loses his residency, the alien cannot reapply at a later date.

Once Granted Legal Permanent Residency, how long is the visa?

Once granted legal permanent residency, you must maintain this status indefinitely by not violating the rules regarding permanent residency.

Renewability

Once granted legal permanent residency, you maintain this status indefinitely so long as you do not violate the rules regarding permanent residency.

Family Benefits of Cancellation of Removal/Deportation?

The grant of permanent residency extends only to you and, generally, any family member who is also independently eligible.

What Documentation Do I Need?

At the very minimum, the following is a potential list of the types of documents that prove your time of residency and exceptional and extremely unusual hardship to a U.S. citizen or permanent resident (others may apply as well)

• Evidence that you have been residing in the U.S. for at least ten years. These may include copies of tax filings
• Police reports from every city or state you have lived in for a while
• School records of your U.S. citizen or legal permanent resident child
• Medical Records or evidence of physical ailments of the immediate relative that would establish "exceptional and extremely unusual" hardship (if applicable)
• Therapy Records or Psychiatrist/Psychology Reports on effects of removal of family member on U.S. citizen or permanent resident (if available)
• Evidence of Property or Assets in the U.S. belonging that you own
• Investment/Bank Statements that belong to you
• Evidence of your home country conditions that may result in exceptional and extremely unusual hardship to the qualifying relative

How do I Apply for Cancellation of Removal/Deportation?

You must be in removal proceedings to be eligible to apply for cancellation of removal/deportation. If you are not in removal proceedings but believe that you may be eligible for cancellation of removal, you can request that the U.S. Immigration Service serve you with a Notice to Appear in an Immigration Court and then transfer the case to the Immigration Court.

Stage One:

We prepare and file form EOIR 42 B or EOIR 42 A, together with the U.S. Immigration Service filing fee and send to the Immigration Court.

Stage Two:

Prepare your testimony and appear at a Master Calendar Hearing and an Individual Hearing. At these hearings, we will present your evidence in the form of documents, affidavits and testimony that will establish that your qualifying relatives will suffer exceptional and extremely unusual hardship if you are ordered removed. (Note that the burden of proof is extremely high).

Stage Three:

If the Immigration Judge determines that you have met the burden of proof, the removal proceedings will be cancelled. You will then be granted legal permanent residence or Green Card.

How we show that you are eligible for Cancellation?

Continuous Presence for ten (10) years: To show the judge that you have been living in the United States for at least ten (10) years, you should collect and submit the following evidence:

• Rent Receipts
• School records
• Medical or dental records
• Social Security records
• Payroll records and income tax records
• Utility bills
• Children's birth certificates
• Marriage certificate

Good Moral Character: To show the judge that you are a person of good moral character you should collect the following evidence:

• Letters from family members, co-workers, neighbours, or religious leaders
• Photographs of you and your family
• Tax records
• You must show the judge that you have not been convicted of certain crimes and have not been found to be a habitual drunkard, gambler, or prostitute. Need all police records

Exceptional and Extremely Unusual Hardship: In order to win your cancellation case, you must show that deportation will cause "exceptional and unusual hardship" to your children or family that are either U.S. citizens or legal permanent residents

To prove your family's dependence on you for financial and emotional support, you should gather:

• Proof of child support payments
• Letters from your family
• Bills of family expenses
• Proof of family member's insurance

To prove your family's medical problems, you should gather:

• Doctor's letter
• Copies of medical Records
• Copies of prescriptions
• Letter from social worker
• Copies of treatment records

To prove your children's ties to the United States, you should gather:

• Evidence that your children are attending school
• Evidence of your children's performance in school, such as report cards
• Evidence that your children have friends and other close ties to the United States
• Evidence of your children's activities outside of school (like sports or lessons)
• Letters from teachers, counselors or school principals
• Your children's birth certificate and US citizenship documents

What are the USCIS Filing Fees?

Our fees are separate from the USCIS filing fees. A list will be provided to you.

Citizenship of the United States confers numerous benefits on recipients including the right to vote, religious and political freedom and unparalleled opportunities. The process for obtaining full citizenship can be complex and often lengthy. It is essential to work with an experienced citizenship and naturalization personnel to help you through the process. At The Arrivals Group, we are focused on helping you through the process of obtaining full United States citizenship and advising you on the steps necessary to get there.

Change Of Status

For many clients who are in the US on temporary family visas, employment visas or investment visas, we can petition for change of status. The process is not so difficult for those who qualify, depending on the type of visa you are holding. We have a thorough understanding of the laws that govern this landscape and we will help you through each step.

Citizenship For Families

The Arrivals Group is dedicated to helping families bring their families to the United States and get through the immigration process of becoming full United States citizens. Although the process can be complicated, we can help you by providing assistance and explaining the process.

"Naturalization" means that a foreign-born individual has become a U.S. citizen. Although it can be a long, involved process, naturalization gives you all the same rights you'd enjoy if you'd been born in the United States. U.S. Citizenship and Immigration Services (USCIS) manages the process, and the final decision comes down to a USCIS officer.

Certain Requirements Must Be Met
Family visas are available for people seeking to bring their families into the United States. There visas are available for citizens, permanent residents and green card holders. Depending on your status in the country, we can help you obtain a family-based visa for your:The first step toward becoming a naturalized citizen is to be sure you meet all the requirements. In most cases, you must have a green card and you must have been a permanent resident of the United States for at least five years. The five-year rule is reduced to three years if you got your green card because you married a U.S. citizen. If you've served in the U.S. military, there's usually no time requirement. You must be at least 18 years old and not convicted of a serious crime.

Most Children Are Already Citizens

If your parents are or were U.S. citizens, either born or naturalized before you turned 18, you may already be a citizen. You would not have to apply to USCIS for naturalization.

You Must Be Fingerprinted

Naturalization requires fingerprinting. After you've submitted an acceptable application, you'll receive a notice from USCIS telling you where and when to go to have this done. Most members of the U.S. military can skip this step, but speak with a lawyer to be sure.

USCIS Will Interview You

After you've submitted your naturalization application and had your fingerprints sent to USCIS, an officer will notify you with a time and place for an interview. The interview involves reviewing your paperwork, as well as taking a test. The test proves that you can speak, read, and write English. You'll be tested on your knowledge of U.S. history, as well as the U.S. government system. If you fail the test, you'll be assigned a date and time to take it again. Otherwise, you'll receive a notice of when to appear to be sworn in as a citizen of the United States.

The formal removal of an alien from the United States occurs when the alien has been found removable for violating the immigration laws. Your legal defences are limited if you are "undocumented" (no immigration status in the United States) and you are in "removal" proceedings. To avoid being removed (deported), you should contact an experienced immigration law expert to help with your case to increase your chances of staying in the U.S.

An immigration judge may tell you what types of relief from removal the person appears to qualify for. However, an experienced immigration expert can spend more time with you and provide you with a fuller explanation of what types of relief might realistically be available to you. the relieves available from being deported are:

Adjustment of status: most likely under Immigration and Nationality Act (I.N.A.) Section 245 or 245(i). This is a way of changing from nonimmigrant to immigrant status in order to get legal status in the United States. Usually (among other requirements), you have to have entered the U.S. legally to qualify for adjustment. However, some exceptions to the legal-entry requirement are available.

Adjustment of status through "registry" under I.N.A. Section 249. This is a way of getting a green card if you entered the U.S. before January 1, 1972 and meet other requirements. These include residence in the U.S. since that date, "admissibility," and "good moral character." contact us today to understand what these terms mean and what chances you have.

Asylum. This is a form of protection for people who have fled persecution or fear future persecution in their home country, which allows legal status in the U.S., a work permit, and eventually a green card.

Withholding of removal. Like asylum in many ways, withholding is more difficult to obtain, because you have to show that it is "more likely than not" that you would be persecuted in your home country upon return. Also, it provides fewer benefits than asylum, because recipients are usually ineligible to apply for permanent residence or travel outside of the United States. However, a person who gets withholding can stay in the U.S. and can get work authorization.

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Protection under the Convention Against Torture (CAT). Protection under CAT is available only if it is "more likely than not" that your home country's government - or some person or group the government cannot control - will torture you if you have to return their. But it does not matter why you would be tortured; the fact that it is likely that you would be tortured would be enough. CAT is also like withholding in that persons who receive CAT protection cannot ever get permanent residence or travel internationally. But CAT recipients do usually receive permission to remain and work in the United States.

Cancellation of removal for persons who are not lawful permanent residents. This is a way of obtaining a green card if you can prove ten years of physical presence in the U.S., and can also show that your being removed would cause "exceptional and extremely unusual hardship" to your "qualifying relative" (a spouse, parent, or child who is a U.S. citizen or permanent resident).

Cancellation under the Violence Against Women Act (VAWA). Similar to cancellation of removal for non-permanent residents, the applicant for VAWA cancellation must show that he or she has been "battered or subjected to extreme cruelty" by a "qualifying relative" and meets other requirements, including three years of physical presence in the U.S. and good moral character.

NACARA special rule cancellation. Available only if you meet very specific requirements, including being from one of a list of particular countries. Some applicants for this type of relief also have to show that they applied for asylum before a certain date or that they are eligible to apply to reopen past removal proceedings under the "LIFE Act."

Voluntary Departure. If all else fails, this offers way to leave the U.S. without staining your immigration record with a past order of removal (which can make returning to the U.S. even harder).

Deferred action. This is an agreement by the U.S. government to put your case on hold (neither give you legal status nor deport you). It is applied on a case-by-case, except that procedures have been formalized for certain young immigrants.

Prosecutorial discretion. This is a decision by the government agency that is trying to deport you to stop trying to do so. If you receive prosecutorial discretion, you will probably qualify for work authorization. But you will probably NOT be eligible for other benefits such as the right to travel. Usually, persons whose cases are closed based on prosecutorial discretion do not have a criminal record, but there are no set-in-stone rules about who can receive this benefit.

Private bills. Laws passed by the U.S. Congress can help an immigrant receive relief from deportation. This occurs very rarely and only if there are highly sympathetic facts. Private bills are usually an option only if no other forms of relief are available.

Most people who entered the United States illegally as a child probably live in fear of being discovered and deported. Furthermore, many have probably been denied access to opportunities because of this fear and the lack of proper immigration documentation. Fortunately, recent legal developments seem to offer people in this situation an opportunity to escape the constant fear of deportation and obtain the documentation necessary to regularize their stay as well as access services and opportunities that others take for granted. The law in this area is still developing and no definitive stage has been established yet. The Arrivals Group will stay tuned as both the government and the US congress continue to determine what the outcome should be for those caught within this area. We stay informed of the latest immigration policy updates and stand ready to help those who qualify to take advantage of these developments.

DREAM Act in Chicago

The Development, Relief and Education for Alien Minors (DREAM) Act is a proposed piece of legislation that would grant legal status to thousands of qualifying individuals. It applies to those who entered the country illegally as young children, but who have lived here continuously for at least five years and maintained good character during that time.

Unfortunately, while the DREAM Act was proposed years ago, Congress has yet to pass it. To address this problem, the Obama Administration recently announced the "deferred action" program. This program makes two-year renewable protection from deportation available to many individuals who would qualify under the DREAM Act. Chicago immigrants in this category can take advantage of this program by filing a request with U.S. Citizenship and Immigration Services (USCIS).

To qualify, you must meet the following requirements:

• Under the age of 31 as of June 15, 2012
• Entered the country when you were younger than 16
• Lived in the country continuously for at least five years
• In school now, obtained your high school diploma or equivalence, or served in the military

In addition, you must not have been convicted of a felony or certain misdemeanors. When the law is updated, our dedicated experts can help you understand the pros and cons of the deferred action program and submit the correct and complete documentation to get your application processed promptly. Please check back here often to see what the updates are. The law is still developing in this area.

Asylum and refugee statuses are special legal protections available to people who have left their home country for their own safety and are afraid to return. Under the U.S. immigration laws who should seek asylum status, and who should seek refugee status is a matter of where you are when you apply. People outside of the United States must apply for refugee status. People who have already made it to the United States border or the interior (perhaps by using a visa or by entering illegally) can apply for asylum status.

Once granted, both statuses allow you to stay in the United States indefinitely. Asylees and refugees are given permission to work and are allowed to apply for a green card (within one year of either entering the United States as a refugee or being approved for asylum).

But not everyone qualifies for asylum or refugee status. You must meet some strict requirements as detailed below. In particular, you must show two things:

• You are unable or unwilling to return to your home country because you have been persecuted there in the past or have a well-founded fear that you will be persecuted if you go back.


• The reason you have been (or will be) persecuted is connected to one of five things: your race, religion, nationality, membership in a particular social group or your political opinion.

An Adjustment of Status is an application filed by an alien who is physically in the United States and who wants to change his or her non-immigrant status to immigrant or permanent resident status. To file for adjustment of status application, the immigrant must not only be eligible to adjust, but must also not have any bars from making the application.

To be eligible, an alien must meet the following criteria:

1. You must be physically present in the United States. If the alien does not reside in the United States, he/she cannot adjust status in the U.S. and must go through immigrant visa processing at a U.S. consulate abroad instead.


2. Your immigration petition must have been approved. This criterion is only applicable to those who file a family-based immigration petition (Form I-130). However, an alien who is the immediate relative of a U.S. citizen may file an adjustment of status application along with the immigration petition (Form I-130) filed by the U.S. citizen on his or her behalf. For details on who qualifies as Immediate Relative of a U.S. Citizen, please contact us. In addition to this, an I-485 adjustment of status application can be filed concurrently with an I-140 employment-based immigration petition (EB-1 and EB-2), if visa numbers are available. For more information on this, please contact us.


3. Petitions are subject to the numerical annual quota for immigrant visas. For these aliens, they may only file their adjustment of status applications once the cut-off dates published monthly by the State Department pass the priority dates of their initial immigration petition or the immigrant visa number for the category is current. For information on Priority Date and Cut-Off Date, please click here; for the latest Visa Bulletin, please click here.


4. The alien must not have entered the United States illegally. Aliens must have been inspected and lawfully admitted into the U.S. The USCIS considers that you have been "inspected" when you present yourself to an immigration officer at a U.S. port of entry. You are considered admitted when an officer informs you of such and you are allowed to enter the U.S. As a rule, your I-94 and/or the Immigration and Naturalization Stamp in your passport is an indication that you have been admitted legally.


5. No change in circumstances. A change in circumstances could detrimentally alter an alien's eligibility for adjustment of status.


1. Family-Based Situations and Examples:


1. A U.S. citizen mother petitions for her unmarried 20 year old son, an immediate relative not subject to visa quotas. However, before the adjustment application is approved, the mother unfortunately dies, and the son is thereby no longer qualified as an immediate relative of a U.S. citizen.


2. An elderly legal permanent resident father petitions for his alien child, but before the adjustment is approved, the father dies. The child no longer qualifies for adjustment.


3. A legal permanent resident father files a family immigration petition for his 19-year-old alien daughter. The family visa petition had been approved, but while the adjustment was still pending, she gets married. In this situation, the daughter no longer qualifies for adjustment because she is no longer the unmarried child of a legal permanent resident.


2. Marriage-Based Situations and Examples:


1. The U.S. citizen wife petitions for her alien husband as an immediate relative. However, before the adjustment is approved, they divorce. The petition will be denied and he will not be able to adjust his status.


2. The U.S. citizen wife petitions for her alien husband as an immediate relative. However, before the adjustment is approved, they legally separate. The petition may still be approved, but the USCIS will consider the separation as a factor when they determine whether or not the marriage is valid and not merely a "sham" marriage.


3. A U.S. citizen marries an alien wife. However, before he can file an immigration petition for his wife, he dies. The alien wife can still qualify as an immediate relative for adjustment of status if she and her deceased citizen husband have been married for at least two years and they were not legally separated at the time of her husband's death. However, she will have to file an immediate relative visa petition within two years after the date of death and must still be unmarried at the time.


3. Employment-based Examples:


1. An outstanding researcher petitioned for permanent residence under EB-1 (b) status, but before the petition was approved, his employer withdrew his research position offer. His petition will be rejected by the USCIS because a job offer is required for an EB-1(b).


2. An alien is granted a National Interest Waiver and later applies for adjustment of status. However, after being granted the National Interest Waiver, the alien decides she no longer wants to work in her previous research field and decides to take a new job in an unrelated field. The USCIS might deny her adjustment because she is no longer working in her previous research field.


3. If an adjustment is based on an Eb-1 (b), Outstanding Researcher petition, or any employment-based visa petition that requires a Labor Certification, the alien must work for the petitioning employer for 180 days after the I-485 has been filed. Otherwise, the USCIS may deny the adjustment application.

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Aliens that meet the above listed criteria are not automatically eligible for adjustment of status. Aliens will not be able to adjust their status in the U.S. if they are statutorily bared from adjustment. Statutory bars to adjustment include:

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1. Unauthorized Employment, Unlawful Status or Failure to Maintain Status -- Aliens who have engaged in unauthorized employment, or who were not in lawful status at the time of filing the adjustment application, or who have failed to continuously maintain status for even a single day since their entry into the United States are barred from adjustment of status.

Exceptions -- This rule has several exceptions, which include:


1. Immediate relatives (spouses, parents and unmarried children under 21-years of age) of U.S. citizens are still eligible to adjust their status;


2. Violation of status that is in effect a "technical violation" which is not due to the alien's own fault. These "technical violations" include an individual or organization's failure to act on behalf of the alien where such inaction directly contributed to the violation of the alien's legal status; the USCIS' failure to act in a timely manner on an application properly filed by the alien; or the alien's physical disability to request a legal status on a timely basis;


3. Employment-based immigrants who have been out of status no more than 180 days in the U.S. are still eligible to adjust; or


4. The 245(i) exception is available for those that qualify. For more information regarding 245(i), please click here.

1. Exchange visitors with J visas. J-1 or J-2 non-immigrant status holders are subject to the two-year foreign residence requirement. They will be barred from adjustment if they have not completed their two-year foreign residence requirement or if they have not been granted a waiver of it.


2. Fiancé s with K visas. Aliens who are admitted under the K-1 category for fiancé s may only be adjusted to permanent residence on a conditional basis, and only where the adjustment is a result of the K-1's marriage to the sponsoring US citizen within ninety days of entry into the US. In other words, if the alien marries a U.S. citizen other than the one who filed the K-1 petition, the alien is barred from adjustment of status.


3. Public charge. Aliens who wish to adjust their status must be able to prove that they or some sponsoring individual (such as a spouse) have the financial means of supporting themselves. Therefore, unless an alien can show that he or she will not be a public charge, they are not eligible to adjust their status.


4. Aliens who are in removal proceedings and marry a U.S. citizen or permanent resident. The default rule in these instances is that if the marriage was not entered into in good faith and as a result, the alien is ineligible for adjustment of status. However, this bar can be overcome if the alien can show that the marriage was entered into in good faith and not for the purpose of obtaining permanent residence by clear and convincing evidence.


5. Aliens who entered under visa waivers. Aliens who are tourists or business visitors admitted in the Visa Waiver Pilot Program under section 217 of the Immigration and Nationality Act, or under the Guam Visa Waiver Pilot Program under section 212(1) of the Act are barred from adjustment of status. For more information on the Visa Waiver Pilot Program, please click here. However, this bar does not apply to persons seeking adjustments as spouses or unmarried minor children or parents of U.S. citizens. Furthermore, the 245(i) exception is also available for those that qualify. For more information regarding 245(i), please click here.


6. Crewmembers with D visas -- Foreign national crewmen and crewwomen who were serving on board a vessel or aircraft at the time of their arrival are barred from adjustment of status. However, the 245(i) exception is available for those that qualify. For more information regarding 245(i), please click here.


7. Transits without a visa -- Aliens in transit without a visa, traveling through the U.S. to another country, are barred from adjustment of status. However, the 245(i) exception is available for those that qualify. For more information regarding 245(i), please click here.

Adjustment of status is discretionary. It is important to note that adjustment of status is up to the discretion of the USCIS officer handling each case. Even if an alien is eligible for adjustment and is not blocked by any of the statutory bars listed above, the USCIS may still deny an application for adjustment of status. In practice, adjustment of status will be granted where the alien is statutorily eligible and there are no "Negative Factors." When such negative factors exist, the factors will be weighed to determine whether adjustment will be granted. Close family relatives and immediate relatives in the US, may be a strong factor favoring adjustment. The preconceived intent to remain in the U.S. at the time of entry as a non-immigrant, even if this intent does not constitute fraud or willful misrepresentation, may be a sufficient negative factor to deny an adjustment of status application. However, immediate relatives of U.S. citizens can generally overcome such negative factors.

The United States welcomes thousands of foreign workers in multiple occupations or employment categories every year. These include artists, researchers, cultural exchange participants, information technology specialists, religious workers, investors, scientists, athletes, nurses, agricultural workers and others. All foreign workers must obtain permission to work legally in the United States. Each employment category for admission has different requirements, conditions and authorized periods of stay. It is important that you adhere to the terms of your application or petition for admission and visa. Any violation can result in removal or denial of re-entry into the United States.

Temporary (Nonimmigrant) Worker

A temporary worker is an individual seeking to enter the United States temporarily for a specific purpose. Nonimmigrants enter the United States for a temporary period of time, and once in the United States, are restricted to the activity or reason for which their nonimmigrant visa was issued.

Permanent (Immigrant) Worker
A permanent worker is an individual who is authorized to live and work permanently in the United States.

Students and Exchange Visitors
Students and exchange visitors may, under certain circumstances, be allowed to work in the United States. They must obtain permission from an authorized official at their school. The authorized official is known as a Designed School Official (DSO) for students and the Responsible Officer (RO) for exchange visitors.

Information for Employers & Employees
Employers must verify that an individual whom they plan to employ or continue to employ in the United States is authorized to accept employment in the United States. Individuals, such as those who have been admitted as permanent residents, granted asylum or refugee status, or admitted in work-related nonimmigrant classifications, may have employment authorization as a direct result of their immigration status. Other aliens may need to apply individually for employment authorization.

Temporary Visitors For Business
To visit the United States for business purposes you will need to obtain a visa as a temporary visitor for business (B-1 visa), unless you qualify for admission without a visa under the Visa Waiver Program. For more information on the topics above, select the category related to your situation to the left.

For more information on Visas click here:
http://travel.state.gov/content/visas/english/general/all-visa-categories.html