Immigration Law in the United States By Meghann E. LaFountain, Esq. Attorney at Howard McMillan & Tycz, LLC 386 Main Street, Middletown, CT 06457 860-346-1377 mlafountain@howardmcmillan.com
Lawful Immigration Status What it means: You have permission to be in the U.S. legally. It may be temporary or it may be permanent. It might give you the right to work in the U.S., but it might not.
Types of Lawful Status U.S. Citizen: This is permanent. You can only lose your citizenship if you commit very serious crimes. Lawful Permanent Resident ( LPR or green card holder ): This can be permanent, but is very easy to lose. You can abandon your green card if you stay out of the U.S. for too long. Your green card can be taken away (and you will be deported) if you commit certain crimes. A green card is only good for a certain number of years; make sure to renew it before it expires. Visas: There are lots of different visas. A visa is only good for a certain period of time. Not all visas allow you to work. DACA, TPS, etc.
Unlawful Status What it means: An undocumented immigrant. You don t have permission to be in the U.S. If you get caught, you can be deported. Deported means being sent back to your home country. Why do some people have unlawful status? They overstayed their visas. They entered the U.S. illegally (either without a visa or by using someone else s visa). They violated the terms of their visas.
Unlawful Presence When you are in the U.S. unlawfully, you acquire unlawful presence. If you are in the U.S. unlawfully for at least 181 days and leave the country, you will not be allowed back in for 3 years. If you are in the U.S. unlawfully for one year or more and leave the country, you will not be allowed back in for 10 years. If you are in the U.S. unlawfully for a total of one year or more and you leave the country or you are removed (deported) and attempt to enter illegally, you will never be allowed back in the country again.
What Happens If I m Caught by Immigration? If you don t have status or have violated your status, you can be caught. You can be caught entering the country (crossing the border or at an airport) or after you re already in the country. You will be given a Notice to Appear. This document explains why you are being arrested by immigration. You may be detained, released on bond or just released. You will be given a court date. The first court date is when you tell the judge what type of relief you re seeking, if any. The judge will set another date for you to argue your case.
Relief from Removal Removal is the technical term for deportation. You can apply to stay in the U.S. when you are in court. You have to convince the judge that you are eligible to stay. Talk to a lawyer to see if you are eligible. Examples of possible relief: The government is wrong. You never did anything illegal. Asylum. Adjustment of status. You are eligible for a green card based on family or employment. Cancellation of removal. You should be allowed to stay because of your length of time in the U.S. and the hardship that qualifying relatives will face if you leave. Waiver of inadmissibility. The government can overlook certain offenses if you meet the right criteria.
Becoming a U.S. Citizen Birth: People born in the U.S. are automatically U.S. citizens. Naturalization is the process people must follow to become citizens if they are not born in the U.S. Children of U.S. citizen parents: A child can become a citizen if his parents naturalize before he turns 18. You need to be a lawful permanent resident/have your green card for 5 years before you apply to naturalize. (The exception is for people married to U.S. citizens they only need a green card for 3 years before applying to naturalize.) You must be able to speak, read and write English and pass a civics test. Adoption: Children can automatically become citizens under certain adoption laws.
Ways to Get a Green Card Marriage (including fiancé(e)s and widow(er)s) Family Employment Diversity visa (green card lottery) Victims Refugees Asylees Children qualifying for Special Immigrant Juvenile Status Battered families (VAWA) Victims of criminal activity or trafficking
Marriage You must prove that you have a legitimate marriage marriage fraud is illegal. If you are in the U.S. already, you must have entered the country legally and have proof of your entry to qualify. If you are not in the U.S. yet, you have to wait for your green card back home until the U.S. embassy approves your application.
What If I Entered Illegally? If you crossed the boarder illegally: You cannot get your green card in the U.S. You need to return home and wait for the embassy to approve it. This can take months or years, which means you can be separated from your family for a very long time. If you have unlawful presence in the U.S., you need to file a waiver application before your green card can be approved. (Unlawful presence prevents you from returning for 3 years or 10 years.) The waiver application requires a showing of extreme hardship to your U.S. citizen spouse or parent. This is much more than showing that you are going to miss each other. If you have multiple illegal entries, you will probably never qualify for a marriage-based green card.
Family Immediate relatives: Spouses, parents and children (under 21) of U.S. citizens Unmarried children (over 21) of U.S. citizens Spouses and children (under 21) of permanent residents Unmarried children (over 21) of permanent residents Married children of U.S. citizens Brothers and sisters of adult U.S. citizens Find the wait time by googling current visa bulletin. The first result should be the U.S. State Department page with visa bulletins. Click on the current month.
Central American Minors Available for Honduras, El Salvador and Guatemala. Children in one of those countries may be eligible to come to the U.S. if a parent has lawful status in the U.S.
Employment Certain jobs can sponsor you for a green card. You generally need to be in the U.S. lawfully (or not yet in the U.S.) before you can get a job that will sponsor you. For example, you are in the U.S. on a student visa and are hired when you finish school.
Diversity Visa ( Lottery ) The U.S. sets aside a certain number of green cards every year for people from certain countries. You can put your name into a lottery and if your name is drawn, you can get one of those green cards.
Refugees and Asylees Refugees receive permission to legally stay in the U.S. before coming to the U.S. Asylum seekers come to the U.S. and apply for permission to stay here. Asylum seekers are people who were persecuted back home on account of their political opinion, race, religion, nationality or membership in a particular social group or they were tortured by the government. Note: Gang violence will not get you asylum.
Special Immigrant Juvenile Status A special program for children who cannot be reunited with one or both parents. One or both parents must have abandoned, abused or neglected the child. Two-part process: probate court proceedings in Connecticut (while under 18) and then immigration proceedings to get your green card. You can never file for either parent if you get your green card this way.
Battered Families Violence Against Women Act (VAWA) Applies to women and men. Protects spouses, parents and children of U.S. citizens or permanent residents.
Victims of Criminal Activity U Visa T Visa Provided to victims who cooperate in the prosecution of criminals in the U.S.
Visas You must comply by the terms of your visa. Some allow you to work, but many visas do not allow you to work. You must leave the country before your visa expires. This is not a permanent way to stay in the country.
Deferred Action for Childhood Arrivals (DACA) A program that protects people who came to the U.S. as children from being deported and gives them work authorization. Does not make people citizens or give them green cards. Requirements: Under age 31 on June 15, 2012 Came to the U.S. before your 16 th birthday Physically present in the U.S. on June 15, 2007 Resided continuously in the U.S. from June 15, 2007 until present Had no lawful status on June 15, 2012 Currently in school, graduated from high school, earned GED or honorably discharged veteran No significant criminal history
Temporary Protected Status ( TPS ) A special status given to help people in the U.S. if it is dangerous or unsafe for them to return home (ex: Haiti after the earthquake). The U.S. government designates the countries and for how long people are able to stay in the U.S. This does not give you a green card or make you eligible for citizenship, but does give you work authorization.
Benefits of DACA Granted for a period of two years. Can be renewed when it expires (though this could change when a new president comes into office). Gives you work authorization. Protects you from being deported. You may be able to get travel authorization in very special situations (ex: returning home to visit a sick or dying relative).
President Obama s Executive Actions November 2014 President Obama proposed changes to the immigration law in November. These are known as Executive Actions because he didn t need Congress to pass a law on them. Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). This is a program to help parents of U.S. citizens or lawful permanent residents. It requires the parents to have been in the U.S. for a number of years. Changes to DACA. Extending the validity period of the program.
Warning: President Obama s Changes Have Not Started Several states sued the federal government to prevent the government from accepting applications for these programs. These changes are NOT in effect yet. We do not know if or when these changes will be approved. Do NOT let anyone tell you that the changes have been approved unless you see proof of it on government websites (ex: www.uscis.gov). Do NOT pay anyone to file these applications until you know that the government will accept the applications. There are bad lawyers and bad people who will take your money to do this even though it is illegal.
Working in the U.S. You need authorization to work in the U.S. Not all visas allow you to work. For example, if you are here as a visitor (B-2 visa), you are not allowed to work. You can sometimes get work authorization (known as an employment authorization document) if you have an immigration application pending. You can work if you are a citizen or permanent resident. It is illegal to use someone else s papers to get a job. It is illegal to lie about your status to get a job.
Going to School in the U.S. U.S. citizens, lawful permanent residents and people with certain types of visas are automatically allowed to go to school (elementary school, high school, college). Undocumented children can attend public elementary school and public high school. A public elementary school or high school cannot ask for proof of citizenship or legal status. Many colleges may ask for proof of status before admitting students.
In-State Tuition Connecticut allows undocumented students to pay instate tuition rates at CT public colleges. Requirements: Resident of Connecticut Attend Connecticut high school for 4 years Graduated from Connecticut high school or obtained GED Sign agreement that they have applied or will apply to legalize their immigrant status For questions, contact CT Students for a DREAM (C4D) English: carolina.bortolleto@gmail.com, 203-482-7340 Spanish: elizabeth.ruiz@ct4adream.org, 203-858-0871
Health Insurance in the U.S. If lawfully present in the U.S., you must have health insurance. You are eligible for health care reform subsidies under the Affordable Care Act. If you are a citizen, lawful permanent resident, refugee, asylee (or asylum-seeker), trafficking victim or other special immigrant, you are also eligible for subsidies under the Affordable Care Act. Contact Josephine Sempere at Access Health CT if you have questions. josephine.sempere@ct.gov 860-757-5335
Health Care for Undocumented Immigrants Undocumented immigrants are only eligible for emergency Medicaid. There are places that will treat undocumented immigrants even though they do not have insurance. Community Health Center, 675 Main Street, Middletown, 860-347-6971 offers medical, dental and behavioral care
CT Driver s Licenses Drive-only license program started this year in Connecticut. No proof of legal status is required. You are not eligible for this special license if you have legal status. Apply for a permit online at the CT DMV website (ct.gov/driveonly). You must be at least 16 years old. Be careful: If you have a final order of deportation or bad immigration or criminal history, you should not apply for a license. You will be fingerprinted and if there are any warrants out for your arrest (immigration or criminal), you will be caught.
Voting in the U.S. You are not allowed to vote unless you are a citizen. Only citizens can vote in elections. If you accidentally vote in an election, that is a claim to U.S. citizenship and you will never be able to become a citizen.
Criminal Problems Do not do anything illegal, regardless of your immigration status! Having criminal charges against you can alert immigration of your presence in the U.S. You can be deported if you don t have status. You can lose your green card if you commit certain crimes. You can become ineligible for a green card or for citizenship if you commit certain crimes. Unless you are a U.S. citizen, talk to an immigration attorney and a criminal attorney if you are arrested.
How to Apply for Immigration Benefits Go to the government website to find the forms (www.uscis.gov). The forms are free, but you have to pay the government filing fees when you apply. Discuss your case with an immigration attorney.
Should I Apply? Only apply for immigration benefits if you are aware of the potential risks. Certain cases can result in deportation if you lose. Make sure to tell the truth in your application. If something about the truth makes you ineligible, do not apply. If you aren t comfortable reading/writing in English, make sure you have a competent translator tell you what the applications say. Make sure your answers are translated correctly.
Warnings NEVER let anyone who is not a licensed immigration lawyer help you file immigration papers. These people can get you deported. NEVER lie to the government on any documents or in anything you say. NEVER tell anyone you are a U.S. citizen if you are not a citizen. The easiest ways to make this mistake are on job applications/forms (ex: Form I-9) or mortgage applications. NEVER use fake documents or documents that are not your own. If you did not legally get the document and are not entitled to the document, it is fake.
Recommendations Always talk to a licensed immigration lawyer before filing any immigration paperwork. Make sure the person is really a lawyer before hiring them. You can confirm that the lawyer is licensed in Connecticut by entering his last name in the CT Judicial Branch website: http://www.jud.ct.gov/attorneyfirminquiry/attorneyfir minquiry.aspx This website will also tell you if the lawyer has been grieved, which means he has been disciplined by the state. Immigration lawyers can be licensed in states other than Connecticut.
Questions?