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Changing or Adjusting Visa Status While in the United States
People visiting the United States for a temporary purpose, such as tourism or to attend school, usually obtain different visas that are grouped into a category known as nonimmigrant visas. The nonimmigrant status usually means that at the time the visa is granted, the person has represented that he or she has no intention of staying in the country long term. However, when a nonimmigrant visa holder changes his plans and wishes to stay longer, he is required to apply for a change or adjustment of status.
A person may adjust status from a nonimmigrant visa status to an immigrant visa status, or change status from one category of a nonimmigrant visa to another. For example, if a visitor on a nonimmigrant tourist visa wishes to change status in order to attend school in the United States, he or she can apply for a nonimmigrant student visa. Similarly, if a visitor on a nonimmigrant visa wishes to get married, he or she can apply to adjust his status to an immigrant visa or lawful permanent residence.
You cannot change your nonimmigrant status if your nonimmigrant visa is expired. You would have to leave the country and reapply for the visa you need from outside the United States. However, if your visa expired and you stayed in the country for a long period of time out of status, leaving the country is no guarantee that you will receive another nonimmigrant visa.
There are some nonimmigrant visa holders who may not change status while in the United States. These include finance visa holders and people who are granted nonimmigrant visa for helping the United States government by informing on terrorism and organized crime. If you cannot change status while in the United States, it does not mean that you cannot change status by leaving the country and reapplying for a different visa from your home country or from another country.
Additionally, some nonimmigrant visa holders, for example under the J-1 visa, are required to return to their home country for a minimum of two years after the end of their program. This means that they are not allowed to change or adjust status before fulfilling the two-year requirement if it applies to them. There is a waiver available under certain conditions. If the person holding a J-1 visa and his or her family members believes they will be subject to persecution based on race, religion, or political opinion upon returning to their home country, they may qualify for a waiver of the requirement. If a waiver is applicable, it may be possible to change or adjust status.
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Life can be unpredictable, and your reason for visiting the United States may change during your visit, and you may have to apply for a new visa in order to avoid immigration issues down the road. If you need to change your visa from one nonimmigrant visa to another, or from a nonimmigrant visa to lawful permanent resident status, contact us for more information and assistance on filing your application. Contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP.
Undocumented Students Access to Financial Aid
Generally, undocumented students are not eligible for federal financial aid to help pay for the cost of a college degree or other forms of higher education. This does not mean that the students do not have other options, and these come mainly in the form of institutional aid and state assistance.
In California, undocumented students who meet certain criteria qualify to pay in-state tuition in California schools. This can make a big difference, with students saving thousands or tens of thousands a year in tuition costs. Undocumented students who attended a California high school for at least three years may be eligible.
Additionally, California provides undocumented students with an opportunity to borrow money to pay for their educational costs. This loan, known as a DREAM loan, has a relatively low interest rate and allows a student to borrow a maximum of $20,000. Students who receive scholarships and other grants and aid can use the DREAM loan to bridge any gap in aid and pay for their education in full, even though the student has to pay the loan back.
Undocumented students have to complete annual applications in order to apply for aid and certify their eligibility for paying lower tuition fees. This does require providing a lot of identifying information to the state and to the school the student is attending. This may make some undocumented students or their parents hesitate because of a fear that this information may be used to target them for deportation.
Generally, the information that students provide for student aid purposes is not shared with federal immigration officials. Additionally, several cities and schools in California have declared they are sanctuary cities and schools, and would not likely share this information with immigration officials except in serious circumstances, or where it is required by law.
Students who have registered under DACA, sometimes referred to as DACA-mented, are not eligible for federal financial aid in the form of either loans or grants. These students still have an advantage of being able to work in the U.S. legally, which could help them earn money to help them pay for the cost of tuition and room and board. DACA-mented students can also apply for in-state tuition and the DREAM loan discussed above.
The opportunities discussed above do not generally apply to students who are seeking to attend school in California under a nonimmigrant student visa such as a J-visa or F-1 visa. Students who are on a non-immigrant visa generally pay nonresident tuition rates, and are restricted in the forms of financial aid they receive. These students typically receive private or school grants and scholarships.
Contact Us for Legal Advice
If you are the parent of an undocumented student and are worried that enrollment in school could cause problems for the student and put him or her at risk for deportation, you need to discuss what legal options your child has with an experienced immigration attorney. Contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
Avoiding Deportation by Applying for Cancellation of Removal
Although legal permanent residents in the United States usually enjoy many rights that U.S. citizens have, unlike U.S. citizens, there are certain circumstances under which a legal permanent resident can be deported. For example, legal permanent residents can be deported for committing certain crimes. When a legal permanent resident receives notice that he or she is to be deported, he or she can apply for relief from deportation if he or she can show that he or she meets certain conditions.
Cancellation of Removal
When a legal permanent resident receives a Notice to Appear from the government, it usually means that removal or deportation proceedings against the person may be started. The notice usually has details about removal proceedings and the reason for the proceedings.
Legal permanent residents who are facing deportation have a form of relief available to them known as the cancellation of removal. The legal permanent resident can apply for a cancellation of removal by showing that he meets three conditions.
The lawful permanent resident must show that he or she:
- Has been an immigrant lawfully admitted for permanent residence for not less than five years;
- Has resided in the United States continuously for seven years after having been admitted in any status; and,
- Has not been convicted of any aggravated felony.
Once these three conditions are met, the Attorney General can exercise his authority to cancel the deportation proceedings against a lawful permanent resident. However, even if the three conditions are met, the application may still be rejected.
Stop Time Rule
Under what is known as the stop time rule, the seven years of continuance residence required for a cancellation of removal stops running when the lawful permanent resident commits a crime that makes him eligible for deportation, or at the time he receives a Notice to Appear. If more than one Notice to Appear has been issued, then the stop time rule applies to the most recent notice. Therefore, if the lawful permanent resident began residing continuously in the U.S. in 2000, and received the Notice to Appear that leads to deportation in 2006, he would not have the seven years required to apply for a cancellation of removal.
Other Cancellation of Removal Cases
Other immigrants who do not have lawful permanent resident status can also apply for the cancellation of removal relief, but they must meet different conditions than lawful permanent residents. These conditions are often harder to meet. An applicant for cancellation of removal who is not a lawful permanent resident is required to show that removal will result in exceptional and extremely unusual hardship to the applicant’s spouse, parent, or child, who is either a U.S. citizen or a lawful permanent resident.
The residence requirement is shortened to three years for a person who is a victim of domestic abuse by a U.S. citizen or permanent resident. In addition, the victim of domestic abuse must show that he or she was of good moral character during the three years, and that removal will result in extreme hardship to his or her parent or child.
Contact Us for Legal Assistance
If you are a legal permanent resident and have received a notice informing you of deportation proceedings against you, you need to contact an experienced immigration attorney immediately. Deportation will mean a loss of important rights you hold as a permanent resident. Do not delay; contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
The Responsibility of Sponsorship
United States citizens with family members who want to emigrate from another country sometimes make the decision to support an application for an immigrant visa or for legal permanent residency. In supporting such an application, the U.S. citizen has to attest that he or she will support the applicant financially. Most people who are supporting a family member’s application do not necessarily think of the implications of the promise to support the application, but the promise is legally enforceable.
The document that the U.S. citizen signs to support a person applying for permanent residence is known as an affidavit of support. The affidavit of support requires the U.S. citizen, who is referred to as a sponsor for purposes of the affidavit, to promise that he or she will support the person making the application for a period of time. This time period can be 10 years or longer. The affidavit of support is legally enforceable and is relied on when the government makes the decision on the application.
The sponsor is required to provide a copy of his or her tax return and proof of income when filing the affidavit of support. The spouse has to show that he or she has income that is equal to 125% of the U.S. poverty level for his household size. If the sponsor does not have the required income, he or she can count the value of assets, and the income of others in his household. If the sponsor does not meet the income and assets requirements, it is possible that the application will be denied unless there is a co-sponsor.
If the applicant is granted legal permanent residence or an immigrant visa that allows him or her to live and work in the U.S., the sponsor does not really provide the person’s day-to-day support. The legal permanent resident works towards supporting him or herself, and at the same time accumulates work credits. When enough work credits are earned, the sponsor is released from the obligation to support the person.
The sponsor is also released from the obligation when the sponsored person leaves the country or becomes a U.S. citizen. However, divorce does not mean that the sponsor is no longer financially responsible. A sponsor can still be held financially responsible for a former spouse.
However, if the legal permanent resident falls on hard times and has to apply for means tested public assistance, the sponsor can be asked to repay any benefits paid to the legal permanent resident. In some cases, the government agency that paid out the benefits may sue the sponsor to recover the benefits.
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If you are considering acting as a sponsor for a relative, it is important to understand the obligation of sponsorship. However, in many cases, the sponsored applicant who receives the opportunity to work in the U.S. can provide this or her own support and even provide support to the sponsor. For more information on how to sponsor a relative’s application for an immigrant visa or for legal permanent residence, you should contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
Does the United States Allow Dual Citizenship?
Immigrants who become United States citizens through naturalization sometimes end up holding dual citizenship automatically. This means they remain citizens of their country of birth, as well as citizens of the United States at the same time. Sometimes, these new citizens may be worried that they are jeopardizing their American citizenship by continuing to hold on to their prior citizenship, and as a result, they renounce their other nationality.
While United States law does not specifically allow for dual citizenship, it also does not specifically prohibit it, and many American citizens do hold dual citizenship. There are some ways in which a person who was born a U.S. citizen can lose U.S. citizenship by specifically applying for citizenship in another country with the intention of renouncing their U.S. citizenship.
The oath immigrants take upon becoming American citizens sometimes causes some confusion as to the consequences of becoming a citizen. This is because it requires immigrants to pledge their allegiance to the United States and renounce all loyalty and allegiance to another sovereign. However, for citizens of other countries, the oath they take upon becoming a U.S. citizen does not change their status in their home countries unless the laws in those countries say that taking the oath renounces the other country’s citizenship.
There are numerous advantages of dual citizenship, with travel being the greatest. Dual citizens may be able to travel to various countries without requiring visas and advanced approval either by using their U.S. passport, or the passport of their other nationality. Dual citizens should consider which passport affords them more advantages in the country to which they are travelling beforehand.
Sometimes, having dual citizenship can affect how the U.S. government may be able to help citizens abroad in a country where they hold citizenship. This is why the State Department discourages dual citizenship. Additionally, citizens of other countries may be required to pay taxes and meet other obligations even if they live primarily in the United States. Depending on the law of that other country, failure to meet these obligations may mean legal problems if the person seeks to later take advantage of their citizenship to buy real property or engage in other business in that country.
U.S. citizens who live abroad as citizens of other countries are also required to pay taxes on their foreign investments, and meet other obligations of their American citizenship. Failing to pay taxes owed under U.S. law can subject a U.S. citizen to charges of tax evasion, no matter where he or she lives or works. Sometimes, the high rate of taxes required of foreign earners has led some American citizens to renounce their citizenship, although there are also other tax implications for people who renounce their citizenship.
Contact Us for More Information
If you hold dual citizenship and are concerned about how your status as a citizen of another country and how actions you take as a citizen of that other country can affect your American citizenship, you can seek more information from an experienced immigration attorney. For a consultation, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.
Exclusionary Rule and Deportation Hearings
When a person is arrested and charged with a criminal offense, evidence collected against the person cannot be used in a trial against him or her if the police got the evidence in violation of the person’s Fourth Amendment rights. Fourth Amendment rights are those protections that people have against unreasonable police searches and detentions. Unfortunately, the rules that do not allow evidence collected in violation of the Fourth Amendment to be used against a person accused of a criminal offence do not apply to deportation proceedings.
The United States Supreme Court has decided that deportation proceedings are civil proceedings, and as such, the rules applicable in criminal proceedings do not apply. Therefore, even if a person is arrested after an illegal stop by the police, the fact of the illegal arrest and any evidence of the person’s status that was pulled because of the arrest will be admissible at a deportation hearing.
However, even if the exclusionary rule that works in criminal proceedings does not apply in deportation hearings, it is still applicable to everyone in a criminal trial despite their immigration status, and can still protect an undocumented immigrant accused of a criminal offence. So, if in addition to being taken to a deportation hearing, the immigrant is also facing criminal charges, the criminal charges may be dropped if the evidence collected during an illegal arrest is suppressed. This is important because criminal convictions and plea bargaining can affect a person’s future chances at a deportation hearing or when seeking a change of legal status.
This difference between criminal law and immigration deportation hearings does not mean that undocumented immigrants do not have rights. Constitutional rights apply to everyone equally. When dealing with police officers, immigrants still have the right to remain silent and keep from answering questions that could affect both a criminal case and a deportation proceeding. If an undocumented immigrant is not near a border or a port of entry, he or she does not have to answer questions about how long he or she has been in the country or got into the country in the first place.
If immigration agents ask for immigration papers, the immigrant usually has to produce them. This is true of both legal immigrants in the U.S. on a visa, and illegal immigrants. If a person does not have papers on him or her, it is best to keep quiet and not try to explain his or her way out of the situation. Remember, the statements made to the agents can be used in a deportation hearing even if the arrest that led to the asking for papers was illegal.
Let Us Help You
Your immigration attorney can always present evidence that supports you in your efforts to avoid deportation. In some situations, some immigrants have sued in civil court for compensation after being illegally arrested by police officers or detained for long periods of time.
If your loved one has been arrested and is facing deportation, contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.
What Happens to Children Who are U.S. Citizens When Their Parents are Deported?
We recently wrote about undocumented immigrants with U.S. born children making arrangements for others to care for their children in case the parents are deported. Many parents take steps to legally give power of attorney over their children to U.S. citizens or other immigrants who are in the country legally. Unfortunately, this is not a choice that is available to all parents, either because they have no one to turn to who is willing to care for their children, or because they are deported before they can make plans.
When undocumented parents of underaged children are deported without notice, the most likely outcome is that the children end up in foster care. The parents often cannot challenge the placement of the children in foster care because the parents are in detention or already deported. When the parents are deported, there is no requirement for their children to be deported along with them because the children are U.S. citizens. The children are taken into the state’s foster care system, and in some cases, eventually put up for adoption after parental rights are terminated.
The termination of parental rights does not have to be voluntary, and in some cases, if the court finds that a parent has abandoned the children, even when the parent is absent against his or her own will, parental rights can be terminated. The criteria for what makes someone an unfit parent is not always clear, and it is easy for a parent’s illegal immigration status to be used as an excuse to terminate parental rights.
Deported parents can fight for their children from their home countries after deportation, but that is often a difficult situation. They also may not be able to see their children and may be restricted in other forms of communication.
In some rare situations, it is possible for parents who are primary caregivers to their children to avoid being deported on humanitarian grounds. However, if the children have another parent in the U.S. who is not subject to deportation, the undocumented parent is likely to be deported even if he or she is the primary caregiver.
Fortunately, in most states, a sibling can take on the role of guardian to younger siblings if his or her parents are deported. This can be the best way to ensure that the children stay together and they can be eventually reunited with their parents.
Undocumented immigrants who are married to U.S. citizens or who have children who are over the age of 21 years old who are U.S. citizens should explore the legal options available to them to change their status. The process may often be expensive and may require the undocumented immigrant to return to his or her home country for a period of time.
In the past, not every undocumented immigrant who had an avenue to apply for legal status did so because of the expense and the lengthy process. However, under changing immigration policies, it is best for undocumented immigrants to take advantage of any legal option that can lead to legal status, instead of waiting for immigration officials to come knocking.
Contact us for Legal Assistance
If you are an undocumented immigrant who may be eligible for legal permanent residence or naturalization through a family member sponsoring your application, contact us for more information about eligibility and the application process. Contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
DACA Recipients and the Fear of Deportation
Undocumented immigrants who were brought into the country illegally as children were given an opportunity to apply for protection from deportation through the Deferred Action for Childhood Arrivals (DACA) program implemented under the Obama Administration in 2012. Under this program, DACA recipients, also known as Dreamers, were allowed to work legally and go to school as long they registered with immigration officials and met other conditions. It has generally been understood that DACA recipients would not be subject to deportation if they consistently met their requirements.
Recent news of a California resident who is reportedly the first DACA recipient to be deported since the change in government may have other DACA recipients worried that the safety afforded by the program may soon become a liability because registration make it easier for them to be found by immigration officials. However, while the news of DACA recipients being deported may be surprising, nothing has changed in the law to specifically allow for the deportation.
Deportation was always possible under the DACA program, but a DACA recipient was eligible for deportation if he posed a threat to national security or public safety. This means that for the most part, as long as the DACA recipient did not get into major trouble with the law, the chance of deportation was low. This also means that currently immigration officials may exercise more discretion to deport more DACA recipients based on a more relaxed definition of who poses a threat. However, there has been no public announcement of a shift in policy to increase the deportation of DACA recipients.
If you are a DACA recipient and your status is not expired, you can take some steps to ensure that you are not immediately deported if immigration officials pick you up on another matter. The most important thing is to make sure you carry your DACA documentation with you at all times. This will not protect you in every case, and you may still get detained for a period of time. However, immediate deportation will be less likely if you can show you have current DACA status.
Another key step is to know your rights. Police cannot stop you to question you about your immigration status without probable cause or a warrant. You also have the right to remain silent if you are arrested, and you should exercise that right. Do not give the police details that could hurt you later. Finally, if you are picked up and detained, do not sign any paperwork presented by immigration officials without your attorney.
The feeling of security that DACA may have given some may be decreasing, and eligible dreamers who had not yet filed applications for DACA status may be more reluctant to do so now. There are benefits to applying for and updating DACA status, however, before applying, it may be best to talk to an immigration attorney and decide if it is the best move for you.
Contact an Experienced Immigration Attorney
If you have an immigration related issue, or have received a removal order for your deportation, you should contact us for legal assistance. Contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP today.
Can Undocumented Workers Receive Workers’ Compensation?
Undocumented workers are just as likely to be injured on the job as other workers who are legally allowed to work in the United States. However, when they are injured, undocumented workers may be hesitant to apply for the workers’ compensation benefits they are entitled to because they are afraid that will lead to them losing their jobs or being deported. Some workers also argue that undocumented workers should not receive benefits because they are not really employees, as they are not legally permitted to work.
States have their own laws governing workers’ compensation, and can include undocumented employees into the definition of qualifying employees under the law. California’s workers’ compensation law does this, and therefore, undocumented workers who are qualifying employees are eligible for workers’ compensation benefits.
If the undocumented worker is an independent contractor, he or she cannot receive these benefits because they are only available to workers who qualify as employees. In some cases, the employer may improperly label an employee as an independent contractor. In those cases, a court can determine if the employee is properly classified.
If an undocumented worker does not qualify as an employee for workers’ compensation purposes, he or she may still file a personal injury lawsuit against the employer and anyone else who is liable for injuries sustained in a workplace accident. As with workers’ compensation benefits, a person’s immigration status is not a factor in who is allowed to file a personal injury lawsuit in California, and undocumented immigrants can legally file lawsuits.
While the law allows undocumented workers to collect workers’ compensation benefits, it may be difficult to do so in reality. Some employers may threaten to report workers who claim these benefits to immigration officials. This can force workers to forgo important rights in order to avoid deportation. Unfortunately, undocumented workers may be deported even if they have a valid claim against their employer, and the employer’s action in trying to blackmail the worker would not be applicable as a defense to deportation.
However, workers should remember that the employer also faces fines under the federal law for hiring undocumented workers. The employer’s threat may be just that, a threat, because the employer may not want to bring attention to his or her employment practices. Undocumented workers who believe they have a workers’ compensation case should seek advice from a workers’ compensation attorney.
Undocumented workers have additional workplace rights regardless of their immigration status. If an undocumented worker feels unsafe due to workplace conditions, he can file a complaint with the California Department of Industrial Relations.
Contact Us for Employment Related Immigration Issues
All workers should be protected and offered a safety net in case they get injured on the job. Being an undocumented worker in California does not mean that you do not have workplace rights. If you have any immigration issues related to working in the United States illegally, we may be able to provide legal assistance. Contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California and schedule a consultation.
Birthright Citizenship and Immigration
Birthright citizenship has at times been a controversial topic when discussed in the context of immigration. This is because critics argue that allowing children born in the United States to automatically become citizens encourages illegal immigration. However, birthright citizenship is guaranteed under the United States constitution and cannot be changed without a constitutional amendment.
What does this mean for foreign citizens who are in the country, legally or illegally, when they give birth? Generally, the immigration status of the mother and father of a child born in the United States does not change the minute the child is born and acquires automatic citizenship. In some cases, the child may also automatically acquire the citizenship of the parents’ country upon birth, but this does not mean that the child is not also an American.
Parents cannot renounce American citizenship on behalf of their children. Therefore, a parent who does not wish for his or her child to gain automatic citizenship should not give birth to the child in the United States. There are many benefits to citizenship, so it is rare for a parent to want to renounce the child’s American citizenship.
This is part of the reason that there is a booming business in what is known as birth tourism. This term is used to describe travel to the United States, generally on tourist visas, by foreign women who are pregnant with the goal of having their children in the country. Once the child is born, the parents return to their country of origin and raise their children there.
When the child grows up, he can apply for lawful permanent resident status for his parents if he so chooses. In addition, the child can access other opportunities that would be difficult for a foreigner to get, for example, a better chance at admission to a university, employment in the country, or owning property.
Pregnant women traveling to the United States for the sole purpose of giving birth here may run into some issues gaining a visa and being allowed into the country. Immigration officials may require evidence that the woman does not intend to stay permanently within the country, if she is applying for a nonimmigrant visa. The parents may also be expected to prove that they will be able to pay for the cost of the delivery and any other medical complications that may arise. This is because immigration officials do not want the mother and child to be dependent on government resources.
It is important to remember that even if the consulate or embassy in your home country approves a visa, the border patrol agent at the border could still deny you entry into the country. It is therefore best to have a backup plan.
Contact Us for Legal Assistance
If you are an American citizen seeking to sponsor an application for lawful permanent residence on behalf of your parents or siblings, contact us for assistance with the process, and to learn more about what information you will be required to provide in the application. Contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
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