Advisory Alert !

• Starting July 2007, the application fees for most immigration applications will significantly increase.
    

• Starting April 1, 2007, BCIS will accept H-1 applications for employment starting dates of October 1, 2007. File your H-1 applications as soon as possible after April 1.

The Law Offices of Marshall G. Whitehead provides experienced and affordable immigration assistance. Each month our office will cover different topics with the hope of providing the community with assistance.

REMOVAL PROCEEDINGS

What are "removal proceedings"?

Removal proceedings are the equivalent of deportation proceedings.

Who can be placed in removal proceedings?

Except United States citizens, any alien who has violated either the immigration laws or in some cases, a criminal law, can be placed in removal proceedings. Even lawful permanent residents can be placed in removal proceedings for certain criminal violations. 

If an alien is in removal proceedings, will he/she be detained?

It is possible that an alien can be detained. However, in most cases, that person can be released from custody by posting an immigration bond. The immigration bond money is returned to the obligor if the alien makes all his court appearances and either is ultimately deported or wins his/her case. 

What is Cancellation of Removal?

There are two forms of Cancellation of Removal. (1) 10- Year Cancellation of Removal for Non Permanent Residents and (2) Cancellation of Removal for Legal Permanent Residents

10-year Cancellation of Removal allows certain aliens who have been in the US illegally to obtain a green card if certain requirements are met. An alien can only apply for this if he/she is in removal proceedings.

Cancellation of Removal for Legal Permanent Residents may allow a green card holder to keep his green card if he/she is in removal proceedings as a result of a criminal conviction.

What are my rights in removal proceedings?

If you are in removal proceedings, you have the right to have an attorney represent you at no cost to the US government. You have the right to present witnesses and evidence in your case. And you have the right to appeal any decision the Immigration Judge may make. If you are in removal proceedings, it is highly recommended that you seek the services of an immigration attorney as the consequences of losing your case are severe. 

IMMIGRANTS V. NON IMMIGRANTS

What is the difference between an immigrant visa (IV) and non-immigrant visa (NIV)?
The IV is a permanent visa, also known as the "green card." The NIV is a temporary visa issued for a certain purpose and time period, such as for students, visitors, temporary workers and investors.

What are the most common NIV's?
Visitors (B)
Crewman (D)
Investors (E)
Students (F)
Professional Workers (H)
Exchange Students (J)
Fiance (K)
International Manager (L)
Aliens of Extraordinary Ability (O)
Performing Artists (P)
Religious Workers (R)

What are the most common ways to apply for a permanent visa?
Family relationships such as through parents, siblings, spouses, and children. This includes marriage.

Employment sponsorship based on superior skills, education, knowledge or reputation or based upon a shortage in the U.S. labor supply (labor certification).

Investment of money into the U.S. economy.

Visa lottery, which is open to certain countries in the world.

Hardship categories such as asylum and cancellation of removal (based on long duration of presence in the U.S.)

IMMIGRATING TO THE UNITED STATES

How can I immigrate to the United States?  
There are seven ways to immigrate to the United States:
(1) Family sponsored immigration; (2)  Employment based immigration; (3)  Diversity Visa lottery; (4) The million dollar investor; (5) Registry; (6) Religious Worker; (7) Hardship categories Asylum and Cancellation of Removal 

Who in my family can sponsor me?  
A United States citizen can sponsor his/her parents, spouse, children, and brothers/sisters.
A legal permanent resident can sponsor his/her spouse, parents, children under 21 and unmarried sons/daughters over 21. 

Who is an “immediate relative?
Immediate relatives are the children, spouses and parents of a United States citizen.  Immediate relatives are not subject to the availability of visa numbers.   All other immigrants are subject to the availability of visa numbers and fall under the preference categories.

What is the “child status protection act?
The Child Status Protection Act was signed into law on August 6, 2002 and was effective immediately.  It is designed to help prevent negative immigration consequences from occurring when a child turns 21 years of age before the INS or the State Department processes his/her application for permanent residence.  

How does the Child Protection Act work?
For example, an unmarried child under 21 years of age who is eligible for permanent residence is entitled to certain benefits. If his parent(s) are U.S. citizens, the child is considered an "immediate relative" and may obtain a green card without waiting for a visa number.  However, once he or she becomes 21, he/she no longer qualifies as an immediate relative, and must wait years for a visa number.   When a child turns 21, and loses immigration benefits, this is commonly known as "aging-out". The law seeks to prevent the unnecessary separation of parents and children due to aging-out.

ADOPTION 

Is it possible for a United States citizen to adopt a foreign born child and then immigrate the child? Yes, a US citizen can adopt a foreign born child either in his country or in a foreign country and later apply for the child’s permanent visa status as a child of a US citizen parent.
 
Is there an age limit to do this?  
Yes, the adoption must be completed before the child reaches the age of 16.
 
Can the US citizen adopting parent be related to the child? 
Yes. One can adopt a niece, nephew or grandchild, for example. 

Once the child is adopted, what else needs to be done?
Once the child is in the legal and physical custody of the adopting parent, the parent can file the application for the permanent visa. The application can be filed through the local immigration office or through the embassy in the foreign country as long as the legal and physical custody requirements are met. 
 
What is “legal custody? 
Legal custody is obtained if the parent acquires legal guardianship over the child.
 
If the child is in the US and the adoption has already taken place, does the child have to be legally in the US to file for the permanent visa?  
Yes, the child must be legally in the US to immigrate locally. If the child is illegally in the US, there is a procedure by which the child can obtain legal status in the US. 

Must the immigrant visa application be filed or completed before the child reaches the age of 16?
No. Only the adoption must be completed by age 16. 

Can both parents (such as a husband and wife) adopt? Can more than one child be immigrated this way?
Yes. Parents can adopt several children if they are both US citizens. There is no limitation. 

How does this procedure differ from immigrating a child through the “orphan” petition?
No adoption need take place to file for the permanent visa. The petitioning US parent shows the INS that the child is an orphan (no parents, abandoned etc.) and then files the orphan petition with the INS. Once approved, the parent can then file for the child’s visa. 

Which procedure is preferred or better?  
There is no “better” procedure. Numerous factors must be taken into account such as whether the natural parents have consented to giving up the child, the age and location of the child, whether the adoption has already been completed, legal and physical custody issues, and so on. All these issues should be discussed with an immigration attorney prior to making a decision.