“Adjustment of Status” is a process that allows certain people to apply for their Green Card without having to leave the U.S. and attend an interview at a consulate office abroad. There are many groups of people who may qualify for adjustment of status, however, this page will discuss the process specifically for petitioning family members. (For more information about adjustment of status for asylees, VAWA-recipients, U Nonimmigrants, or Special Immigrant Juveniles, please see our information pages on those processes.)
Who is Eligible?
In order to be eligible for adjustment of status, you must first have an approved Family-Based petition and a current priority date. Spouses and unmarried children under the age of 21 of U.S. Citizens, as well as parents of U.S. Citizens who are at least 21 years old, may file their adjustment of status at the same time as filing the family petition, unless you have been placed in removal proceedings (immigration court).
You do not qualify for adjustment of status if you are not present in the United States or were not “inspected and admitted” into the country. That means that you came on some sort of visa and were asked questions by U.S. Border Patrol upon entry (there may be differences in your case if you are a citizen of a country participant of the Visa Waiver Program, a VAWA or U Visa applicant, among others). If you entered through the border without documentation, you usually won’t qualify for adjustment of status. However, there may be another option for you, and our attorneys would be happy to discuss with you further what those options might be. Please see our Provisional Waivers page for more information.
You must also be “admissible” to the United States, which means that none of the many grounds of inadmissibility apply to you. Common grounds include visa fraud, working without authorization (not applicable to immediate relatives of U.S. Citizens), criminal activity, or helping other family member enter the country illegally. If you believe one of these grounds of inadmissibility may apply to you, or if you would like more information about other grounds, we are happy to discuss your options with you. If you were found to be inadmissible at your interview, there may be a waiver available.
Other considerations
To qualify for adjustment of status, you will need to submit proof of the familial relationship (usually through birth certificates or marriage certificates). You will also be required to take a medical exam. The Citizen or LPR family member sponsoring you will also need to provide documentation about their income. In some cases, when their income is not high enough, you may need to find a joint sponsor. You will also be eligible to apply for work authorization while your application is pending.
If you file your adjustment of status application with USCIS
You will be scheduled for an interview at one of the local offices. Both you and your sponsoring family member will be required to attend. The officer will verify the information on your application, review your documents, and ask you questions about your eligibility. If it is a spousal petition, the officer will ask questions to both you and your spouse about your relationship. Although these questions may sometimes seem invasive, the officer has a duty to determine whether your marriage is “bona fide” (i.e. that you married for love, not for an immigration purpose). Immigration marriage fraud is a serious federal crime, for which you can be prosecuted and sentenced to serve up to five years in prison. This applies to both this intending-immigrant and the U.S. Citizen. Couples who are genuinely married and intending to live their lives together, however, will have nothing to worry about.
After your interview, or sometimes at the interview itself, the officer will decide whether to approve your application or ask for more evidence. Receiving a “Request for Evidence” does not necessarily mean that the officer intends to deny your application. Sometimes, it can be as simple as submitting a document or getting a new medical exam. If you fail to comply with a Request for Evidence, however, the officer will deny your application. That is why it is important to consult with an attorney if you are unsure what the officer is asking of you.
If you have been placed into removal proceedings and you have to file your adjustment of status application with the Immigration Court
A hearing will be schedule where you and your family member will testify about your eligibility. You will be required to submit evidence to the court, and the government attorney from the Department of Homeland Security will have the opportunity to examine your evidence and ask you and your witnesses questions. You will most likely have to appear in court a few times before the Judge is able to schedule your hearing, which can take several months or even years. If the judge approves your application, and the government attorney does not appeal that decision, you will be granted Legal Permanent Resident status and receive your Green Card, and your proceedings will be over. If the judge denies your application, you can appeal that decision to the Board of Immigration Appeals.
I Got My Green Card. Now What?
After you completed your adjustment of status process, you may be wondering what comes next. For some people, the next step is applying for your citizenship (called naturalization). Please see our Naturalization page for more information about that process.
Sometimes, you are issued a “conditional” Green Card that is only valid for two years. This is because your marriage occurred fewer than two years before you were granted resident status. If this is the case, you will have to complete the additional step of “removing the conditions” on your status. This is a very important step in the process, and forgetting to do it on time can result in you being placed into removal (deportation) proceedings. For more information on this process, please see our Removal of Conditions page.
Success Story:
Graziela’s parents brought her to the U.S. when she was a teenager. After a mistake on her paperwork, her green card never came.
CONSULAR PROCESSING
Bringing Your Family Members to the United States
Are you interested in helping your family members immigrate to the United States? Consular processing may be an option. *Please note: Consular processing occurs outside the United States at the consulate or embassy in the home country. If your family member is already in the United States, you may need to explore other options.
There are two steps to the process, but certain family members (listed in the “Immediate Relative” category below) may complete both steps in a shorter time. The first step is the Family Petition. The Citizen or LPR family member files the Family Petition with evidence of the familial relationship. If it is approved, the intending-immigrant is then given a “priority date.” Depending on what category your family member is in (see chart below), they may have to wait several years for a visa to become available before they can move on to the second step of applying for their Immigrant Visa. Immediate relatives are not subject to a waiting period and may apply for an Immigrant Visa following approval of the family petition.
Once it is time to apply for the Immigrant Visa, the government will ask for more documentation and schedule an interview, which takes place at the consulate or embassy in the home country. Our office guides your relative overseas on the steps to obtain the visa to ascertain a successful interview in the shortest time possible.
Which Family Members Can I Help?
The answer depends on whether you are a Citizen or LPR (Green Card-holder). Immigration law separates family members into different preference categories:
| Immediate Relatives: | Spouses of U.S. Citizens (and their widow(er)s) |
| Unmarried Children (under 21) of U.S. Citizens | |
| Parents of U.S. Citizens who are at least 21 years old | |
| F1 | Unmarried Sons and Daughters (over 21) of U.S. Citizens |
| F2A | Spouses and Children (under 21) of LPRs |
| F2B | Unmarried Sons and Daughters (over 21) of LPRs |
| F3 | Married Sons and Daughters (over 21) of U.S. Citizens |
| F4 | Brothers and Sisters of Adult U.S. Citizens |
U.S. Immigration law does not allow you to petition for your grandparents, aunts, uncles, cousins, nieces, nephews, and so on. Only U.S. Citizens may petition for their siblings.
How Long Does It Take?
The process of immigrating to the United States can take several years. Due to processing times, quotas, and visa preferences, how long your relative has to wait depends on where they are from and whether you are a Citizen or LPR. Every month, the U.S. State Department publishes the “Visa Bulletin” which lets people know when their number is up and they may apply to come to the United States.
The wait times can vary from a few months to several years. The process can seem confusing, so if you have questions about whether your relative qualifies and how long he or she will have to wait, you are encouraged to consult with an attorney.
My Family Member’s Visa was Denied at the Consulate Interview. Is There Anything I Can Do?
There are several reasons why a visa may be denied at an interview. The officer will go through questions to determine whether your relative is “admissible” to the United States. If any of the grounds of inadmissibility apply, the officer may deny the visa. However, there may be a waiver available for certain grounds, such as fraud, prior unlawful presence, prior removal order, certain criminal grounds, health-related grounds, and alien smuggling. For more information about whether your family member may qualify for a waiver, see our Waivers [LINK] page.
Outside Links
FIANCÉE VISAS
Petitioning to Bring Your Fiancé to the U.S.
U.S. Citizens who wish to bring their fiancés to the U.S., may do so through the K-1 nonimmigrant visa process, commonly referred to as a fiancé visa. This process allows a fiancé residing abroad to travel to the U.S. for the purpose of marrying a U.S. Citizen.
What are the Requirements to Bring My Fiancé to the U.S.?
To qualify for a fiancé visa, you must intend to marry your fiancé within 90 days of their arrival in the U.S. You and your fiancé must also be free to marry, meaning that you will have to provide evidence that any prior marriages are over, such as divorce or death certificates.
Additionally, you will be required to show that you met your fiancé in person at least once in the two years prior to filing your petition. However, if this requirement will cause you extreme hardship or violates your fiancé’s customs or culture, you may request that it be waived.
If your fiancé has children under the age of 21 who are unmarried, you may include them in your petition on behalf of your fiancé. Those children may accompany your fiancé to the U.S. so long as they remain unmarried and under the age of 21.
Do I Have to Marry Within 90 Days?
Yes, you must marry your fiancé within 90 days of their arrival in the U.S. in order to ensure your fiancé does not violate the terms of their visa. If you and your fiancé decide not to marry within this time frame, your fiancé will be required to leave the U.S. before the 90 days are over.
My Petition was Approved, Now What?
An approved petition does not mean your fiancé can travel. Your fiancé will be required to obtain a visa by undergoing consular processing at a U.S. consulate in their home country prior to traveling to the U.S. Please see our Consular Processing section for more information.
Once your fiancé arrives in the U.S. and the two of you marry, your now spouse can apply for adjustment of status to obtain their permanent residency (green card). Please see our Adjustment of Status section for additional information.
Outside Links:
PROVISIONAL WAIVERS
Relief for Family Members of U.S. Citizens and Permanent Residents
There are many situations in which you may find yourself in need of a waiver. If you were found inadmissible at a consulate interview abroad or at an adjustment of status interview in the U.S., you may be wondering what your options are. Fortunately, there are waivers available for many grounds of inadmissibility. Unfortunately, the waiver process can be long and very complicated. We encourage you to seek advice from an attorney if you are in need of a waiver.
What type of waiver you need depends on which ground of inadmissibility applies to you. Below, we outline the different types of waivers available. However, please note that this is not an exhaustive list.
Provisional Waiver for Unlawful Presence
In 1996, Congress established the “ten-year bar,” a mechanism that precludes those who were unlawfully present in the United States for one year or more from seeking legal permanent residence for ten years once the person leaves the country. Congress also established a set of waivers to the ten-year bar, so long as the relative could show that a U.S. citizen or permanent resident parent or spouse would suffer extreme hardship in the relative’s absence. However, in order to apply for the waiver, the relative first had to leave the country, trigger the 10-year bar, and apply at a consulate abroad, leading to a lengthy family separation with no guarantees that the relative could return.
Because of the risks involved—specifically the threat of separation from one’s family for a period of ten years—many did not take advantage of the waiver process. Hoping to streamline that process and curtail the time relatives spent apart from their U.S. based family, USCIS started allowing certain immediate relatives of citizens and legal residents to apply for a “provisional waiver” before departing the United States. In other words, those who qualified could depart the U.S. with their waiver already provisionally approved, decreasing the amount of time they would have to spend apart from their family.
An approved provisional waiver is not a guarantee that you will be allowed to reenter the country, so pursuing this route still poses some risks, that is why it is important to conduct a complete assessment prior to intake and conclusion of the case to ascertain success.
To qualify for a provisional waiver, you must be able to show that your qualifying relative (a Citizen or Legal Permanent Resident spouse or parent) will suffer extreme hardship if you had to stay outside the U.S. for ten years. Hardship to children does not, by itself, qualify you for a provisional waiver. (It may, however, count toward the hardship to your spouse if they will be left caring for your children alone).
What qualifies as “extreme hardship”?
“Extreme hardship” is not specifically defined in immigration law, and there is no magical formula that will get an immigration officer to approve your waiver application. The officer takes into consideration many factors, and what type of evidence you include in your application will vary from case to case. The main goal is to give the officer a full picture of your qualifying relative’s life and how it would be different if you had to return to your home country for 10 years. Generally, the hardship suffered has to be different or harsher that what a typical family would experience during a period of long separation.
At our office, we pride ourselves in preparing a waiver package that details all the hardships that your family would suffer in your absence. After discussing your case with you, we will give you an honest assessment of your likelihood for success and how we can help make sure that your family stays together in the United States.
REMOVAL OF CONDITIONS
Converting to Full Lawful Permanent Resident Status after Conditional Status
You received the happy news that the government approved your Green Card application and granted you Lawful Permanent Resident Status, however, your status is only valid for two years. What is going on?
If you obtained your Green Card within two years of your marriage to a petitioning U.S. Citizen, then the government only granted you with “conditional” residency. Conditional residency means that your Green Card is only valid for two years. To remove conditions on your residency, you have to go through another process known as “removal of conditions.” This is another tool the government uses to combat and discourage marriage fraud.
Once you are granted conditional residency, it is very important to keep track of the two-year deadline. Ninety days before that deadline (i.e. one year and nine months after the issue date on your Green Card), you will be required to file Form I-751 to remove your conditions. If you fail to do so within the allotted timeframe, you will risk losing your residency and being placed into removal (deportation) proceedings.
Filing the I-751 before the expiration of your Green Card automatically extends your status until the government makes a final decision. This means you will continue to be allowed to work, travel, and enjoy all the usual benefits of lawful permanent residents.
Generally, you and your spouse file together to remove the conditions with evidence that you are still married and living together as a couple.
I’m No Longer Married to My Spouse. What Can I Do?
Sometimes, a relationship doesn’t work out. That is a fact of life. If you and your spouse have split up or divorced before the time to remove the conditions on your Green Card, you will still be required to file to remove your conditions, but you will also have to file a “waiver” of the joint filing requirement. To receive the waiver, you must be able to show that your marriage was entered into “in good faith” (not for immigration purposes) but the marriage ended through no fault of your own, or you were abused during the marriage.
Success Story:
Fabio was told it would cost thousand of dollars in legal fees to maintain his status. Unable to afford it, he faced deportation. [Video]
DETENTION
Seeking Release from Immigration Custody
Every day, we work hard to help reunite families affected by ICE detention.
Nothing affects a family more in the immigration context than a family member who is detained. Detention is especially traumatic when it involves the parent of a minor child who is financially and emotionally dependent on that parent. Reuniting families is our most crucial work and we work hard to help our clients gain release from ICE custody. After securing their release, we then work with every client to help them get them legal status in the United States through effective representation in their removal proceedings.
Is my Family Member Eligible for Bond?
Eligibility for a bond varies for each case. Some immigrants, who are considered ‘arriving aliens’ or who have a prior order of removal may not be eligible for bond.
Judges usually consider two questions when determining whether release from ICE custody is warranted for those eligible for bond: whether that person would be a risk of safety to the community, and whether that person would present a risk of flight.
At Massa Viana, we work with families and loved ones of detainees to help them collect the evidence to show that our client has sufficient roots in the United States: civil documents, showing family relationships; history of employment and tax filings, including ownership of businesses; letters of characters; and evidence of community engagement, among others, are some documents requested in preparation for a bond hearing.
My Family Member May have an In-Absentia Order. Is There Anything That Can Be Done?
Usually, persons detained who already have an in absentia order of removal—meaning they were ordered removed by an immigration judge in a hearing to which they did not appear—do not have a right to seek release on bond and are at the risk of immediate removal from the United States.
If we determine that there is a viable legal course of action, we can help families by pursuing reopening of the in-absentia order.
Many times, that is done by proving to the court that the affected party did not have notice of the hearing, and consequently an opportunity to be heard.
There may be other legal arguments available, and each case needs to be individually assessed before a determination is made.
However, families of detained members who have an active removal order should be diligent as they are working against time to keep their family member in the United States.
ASYLUM
Seeking Protection from Harm in your Home Country
Are you afraid of returning to your home country? If so, you may qualify for protection in the United States known as asylum.
Asylum has been in the news a lot in recent months, and there are a lot of rumors and misinformation out there about what asylum is and the process for obtaining it. In reality, the process is long and complicated, and it is highly advised that you consult with an experienced attorney if you are thinking about pursuing an asylum claim.
There are two types of asylum claims: affirmative and defense. Affirmative asylum is for those who are in the United States but have not been placed into the removal (i.e. deportation) proceedings at the Immigration Court. When you apply for asylum affirmatively, your application goes to USCIS for review. You will be placed on a waiting list to be scheduled for an interview, which can be anywhere from a few months to many years. At the interview, you will have the opportunity to explain to the officer why you are afraid of returning to your home country. He or she will ask you questions about your life in your home country as well as here in the United States, including any criminal history. The Asylum Officer will then either approve your application or refer your case to the Immigration Court.
If you apply for asylum defensively, or if your case is referred to the Immigration Court from the Asylum Office, you will be provided with the opportunity to argue your case before an Immigration Judge. In this situation, your case is more like a trial that you see on TV, with a judge, witnesses, evidence exhibits, and attorneys for both sides. Due to the backlog of the Immigration Courts, this process can take many years to complete.
Asylum is a status available to those who meet the definition of a “refugee” according to the 1951 Refugee Convention. In other words, those who are afraid to return to their home country because they fear will suffer persecution on account of their race, religion, nationality, political opinion, or membership in a particular social group. Each of these requirements have a specific meaning under U.S. asylum law, and successfully arguing a claim for asylum requires an intricate understanding of each. That is why it is important to consult with an attorney if you are thinking about pursuing a claim for asylum.
Seeking asylum is available to anyone, regardless of how you entered the country. Generally, you must apply for asylum within one year of your entry, however, certain exceptions to this rule may apply. If you win your case and are granted asylum by either the Asylum Officer or the Immigration Judge, you will be eligible for lawful permanent resident status (Green Card) after one year.
I am a victim of domestic violence in my country can I apply for asylum?
Seeking asylum based on severe domestic violence may be possible. It will be necessary to show that the violence that has been committed against you has related to your race, religion, nationality, membership in a particular social group, or political opinion. It will also be necessary to prove that the government is unwilling or unable to provide you with protection. But being a victim of domestic violence does not necessarily qualifies one for asylum. Each case has to be analyzed on its own merits, so a private consultation is essential before determining whether the person can qualify to petition for asylum.
I am scared to go back to my country, do I qualify for asylum?
You need to find out if the harm you fear in your country is protected under American refugee law. If the persecution you fear or have experienced is related to your race, religion, nationality, membership in a particular social group, or political opinion you may be able to qualify for asylum. Examples of persecution are rape, kidnapping, inability to earn income, female genital mutilation, torture, and inability to practice your religion.
Am I eligible for Asylum?
You may be eligible for asylum if:
- You are currently in the U.S., AND
- You are unwilling or unable to return to your home country BECAUSE
- You fear persecution by the government of your home country OR by a group in your home country from which the government is unable or unwilling to protect you.
What kind of persecution qualifies?
You must fear FUTURE persecution. If you suffered PAST persecution, the asylum office may assume that you also fear FUTURE persecution.
Your fear of persecution must be based on one or more of the following items:
- Race,
- Religion,
- Nationality,
- Membership in a particular social group, OR
- Political opinion.
Some examples that MAY qualify as “persecution” are killing, torture, kidnapping, domestic violence, rape, female genital mutilation, and inability to practice your religion.
Is there a deadline to applying for asylum?
YES! You MUST apply for asylum within one (1) year of arrival in the U.S. unless you have a good reason for delay.
What are the benefits of Asylum?
Two of the main benefits of Asylum are:
- Authorization to work in the U.S. after your application is approved (and possibly while your application is pending), AND
- One year after your approved Asylum application, you may apply for permanent residency (“Green Card”).
Can I Obtain Work Authorization While I Wait for the Government to Make a Decision on My Case?
Usually, yes. If it has been at least 180 days (6 months) since you submitted your asylum application and have not caused any delays in your process that would “stop the clock” from counting. For more information, please see the USCIS and EOIR EAD Clock Notice.
However, please note that the current administration is revising regulations pertaining to the issuance of Employment Authorization Documents and a change may be on the horizon.
Can I Help My Family Members?
If you are granted asylum, you may be able to petition for your immediate family members (spouse or unmarried children under 21) as derivatives to your asylum status. This process can be used to benefit family members who are still living outside the United States as well as inside the country. Please note the process must be started within two years of winning your asylum case.
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CANCELLATION
Certain immigrants who are placed in removal proceedings may be eligible to apply for a stay of their removal and eventual legal permanent resident status if they meet certain criteria, including demonstrating that their departure from the United States would cause a U.S. Citizen or Legal Permanent Resident immediate relative to suffer exceptional and extremely unusual hardship.
Cancellation of Removal is a defense from removal. As such, one can only apply for Cancellation if the person is in removal proceedings in Immigration Court.
In order to be eligible to apply for the benefit, the applicant has had to have lived at least 10 years in the United States continuously—although not everyone who have entered over 10 years ago can apply.
The applicant also may not have any criminal bars and must show that he or she is a person of good moral character.
The applicant must also have a parent, child or spouse who will suffer exceptional and extremely unusual hardship. These family members, also known as qualifying relatives, must either be U.S. Citizens or Legal Permanent Residents (green-card holder).
By far, the hardest part of winning a Cancellation of Removal case is proving to the judge that the hardship that the qualifying relative will suffer qualifies as exceptional and extremely unusual. This standard is a high standard to be met in immigration court and here is where excellency in advocacy will play a part.
VAWA
Freeing Yourself from an Abusive Relationship
Usually, to immigrate to the United States through a spouse or family member, the immigrant and their U.S. Citizen or Lawful Permanent Resident family member participate in the process together. But when an immigrant finds him or herself in an abusive relationship, it may feel like there is no way out. Recognizing this is the reality for many immigrants across the country, Congress passed what is known as the Violence Against Women Act (“VAWA”) and created a process for immigrants married to abusive Citizens or Lawful Permanent Residents (greencard-holders) to apply for a Green Card on their own, without interference or assistance from the abusive spouse. (This relief may also be available to children of abusive parents and parents of abusive children). The relief is available to immigrants who meet the requirements and being undocumented does not affect your ability to apply.
To be eligible to “self-petition” under VAWA, you must be married (or divorced within two years—unless in removal proceedings) to a U.S. Citizen or Lawful Permanent Resident and you must have entered into that marriage in “good faith” (in other words, for love, not for immigration purposes). You also must demonstrate to USCIS that you lived with your abusive spouse and were subjected to physical abuse or extreme cruelty, consisting of a pattern of abusive behavior. Finally, you must also demonstrate that you have good moral character.
If you feel that you have been or are currently in an abusive relationship, it is important that you first make sure that you feel safe. Please refer to the Resources tab below to find access to organizations in the community who are here to help you. If you feel that you are ready to tackle the immigration portion of your journey to freedom from abuse, we encourage you to schedule a consultation where we can evaluate your eligibility. Please note that these meetings, as with all our communications with our clients, are confidential and will not be shared with your spouse or abusive relative.
I’m in an abusive relationship, but I’m not married, or my spouse is not a U.S. Citizen or Permanent Resident. Can I still apply?
You may also qualify for VAWA relief if the abusive relative is a U.S. Citizen or Permanent Resident parent or adult child. Alternatively, if you are not eligible for VAWA relief, you may qualify for a different type of status known as a “U Visa.” Please see our informational page for more information.
My Spouse Never Physically Hit Me, But I Was Abused. Can I Still Qualify?
Maybe. USCIS understands many non-physical acts, such as verbal threats, stalking, harassment, insults or put-downs, isolation from friends and family, and other controlling behavior, still constitute domestic violence. Even if you never called the police or obtained a restraining order, you may still be eligible. Our knowledgeable and experienced attorneys can meet with you to discuss your eligibility.
Benefits of VAWA
The ultimate benefit of a VAWA self-petition is the ability to obtain lawful permanent resident status (Green Card) in the United States without having to stay in an abusive marriage. VAWA applicants may also be eligible for work authorization and certain public benefits, and you may be able to help other family members get legal status as well.
Resources
- Domestic Violence
- Safelink Casa Myrna’s statewide, toll-free, domestic violence hotline
- Massachusetts Office for Victim Assistance
- The Governor’s Commission on Domestic Violence Additional resources
- Voices Against Violence (VAV) Free and confidential services to victims of domestic/partner violence and sexual assault/rape in the Metrowest area. Services are provided in English, Spanish, and Portuguese and are available to everyone, regardless of sexual orientation or gender identity.
- DOVE (Domestic Violence Ended)
- Jane Doe Inc Massachusetts Coalition Against Sexual Assault and Domestic Violence
- Asian Task Force
- Gay Men’s Domestic Violence Project
- Women’s Bar Foundation Family Law Project for Battered Women
- Saheli Boston A group dedicated to helping South Asian women in Boston and surrounding areas.
- MAPS The Massachusetts Alliance of Portuguese Speakers (MAPS) provides a wide range of health and human services to Portuguese speakers and other residents of eastern Massachusetts.
- National Coalition Against Domestic Violence
- USCIS VAWA Page
U NONIMMIGRANT STATUS
Assisting Law Enforcement in Investigation Criminal Activity
If you have been the victim of a crime here in the United States, you may be able to acquire legal status by helping law enforcement in the investigation and prosecution of that crime.
In 2000, Congress approved the U Nonimmigrant Status, commonly referred to as “U Visa.” When creating the new nonimmigrant category, Congress had two intents: first, to encourage immigrants to come forward and assist law enforcement agencies in the prosecution of criminals; and second, to provide humanitarian relief to victims of crime who did not have legal status in the United States. If you are in danger or have been the victim of a crime, U.S. law enforcement officials encourage you to report the criminal activity, even if you have no lawful status.
The U Visa allows victims who suffered substantial physical or mental abuse as a result of certain criminal activities to qualify for legal status, so long as the applicant meets certain criteria:
• Applicants must have helped in the investigation or prosecution of criminal activity;
• A Police Department, Court, District Attorney’s office or other enforcement agency must certify that the applicant was helpful in either the investigation or prosecution of the crime;
• Additionally, it is necessary to show that the applicant suffered substantial physical or mental abuse as a result of having been the victim of a crime.
Only certain criminal activity qualifies you to apply for a U Visa. These include: domestic violence, kidnapping, attempted murder, prostitution, rape, sexual assault, trafficking, witness tampering, and any other related crimes. It also includes attempt, conspiracy, or solicitation to commit the crimes listed herein.
Benefits of U Nonimmigrant Status
U Nonimmigrant Status holders are given four years to live in the United States under U Visa status but may be eligible to apply for lawful permanent resident status (Green Card) after three years. Family members, such as spouses, children, parents, and siblings, may receive corresponding U Visa status and similarly acquire lawful permanent resident status. U Visa applicants may also receive work authorization while USCIS considers their application; however, due to the backlog of cases, this benefit may still take several years to process.
Another benefit to the U Visa is that even someone with no legal status is eligible to apply. A waiver is available for most grounds of inadmissibility that would usually preclude an out-of-status immigrant from acquiring legal status. Some grounds that can be waived include entering without inspection, fraud, certain criminal violations, and working without authorization. Not all grounds can be waived, though, so a careful and thorough analysis is necessary before applying for U Nonimmigrant Status. Most likely, your attorney will complete several types of background checks to determine your eligibility and need for a waiver.
Resources:
- Domestic Violence
- Safelink Casa Myrna’s statewide, toll-free, domestic violence hotline
- Massachusetts Office for Victim Assistance
- The Governor’s Commission on Domestic Violence Additional resources
- Voices Against Violence (VAV) Free and confidential services to victims of domestic/partner violence and sexual assault/rape in the Metrowest area. Services are provided in English, Spanish, and Portuguese and are available to everyone, regardless of sexual orientation or gender identity.
- DOVE (Domestic Violence Ended)
- Jane Doe Inc Massachusetts Coalition Against Sexual Assault and Domestic Violence
- Asian Task Force
- Gay Men’s Domestic Violence Project
- Women’s Bar Foundation Family Law Project for Battered Women
- Saheli Boston A group dedicated to helping South Asian women in Boston and surrounding areas.
- MAPS The Massachusetts Alliance of Portuguese Speakers (MAPS) provides a wide range of health and human services to Portuguese speakers and other residents of eastern Massachusetts.
- National Coalition Against Domestic Violence
- USCIS U Visa Page
- Police Departments
- District Attorney Victim Services
SPECIAL IMMIGRANT JUVENILE STATUS
A Pathway to Status for Abused, Abandoned, or Neglected Children
Special Immigrant Juvenile (“SIJ”) Status is a unique program for children in the United States who have been abused, abandoned, or neglected by either of their parents to apply for lawful status and a Green Card. If you are under 21 and living with only one of your parents or a relative, you may be eligible for apply.
What Is the Process?
There are three different steps in the process of obtaining SIJ status:
- Obtaining an order from the Family Court
- The first step in the SIJ process is obtaining an order from a family court judge declaring that you have been abused, abandoned, or neglected by one or both of your parents and it is not in your best interests to return to your country. This process will vary from case to case; sometimes, the family court judge will award custody to one of your parents or appoint a family member as a guardian. Although you will be required to testify in the family court, the judge will not ask you if you are illegal in this country, and Immigration authorities do not participate in this process.
- Please be mindful that, in Massachusetts, the Family Court process may take several months to complete, given that the Family Courts are extremely busy, and the Judge needs to take the time to devote his or her full attention to every case.
- Note to Applicants who are over 18 and under 21 years old: Although the legal age of majority is 18, Massachusetts law allows you, in some cases, to file a petition asking the Family Court judge to issue an order pertaining to the abuse, abandonment, or neglect that you have experienced by your parent(s).
- Applying for Special Immigrant Juvenile Status
- After your Family Court hearing is over and the judge has issued the appropriate order, you will be able to move on to the next step, which is applying to USCIS for classification as a Special Immigrant Juvenile. This process can take several years for a decision, depending on the applicant’s country of origin. During this time, unfortunately, you may not qualify for work authorization.
- Sometimes, USCIS may choose to interview you about your eligibility for SIJ status. If USCIS schedules you for an interview, don’t panic. Our team will work with you to prepare you for what to expect at the interview.
- Applying for Adjustment of Status (Permanent Resident Status or Green Card)
- The third and final step is applying for a Green Card through a process called “Adjustment of Status,” although that will depend on the type of case you have. Sometimes, depending on country of origin, applicants are allowed to combine steps two and three. See below for more information.
- Are you in Removal Proceedings? If you have been placed in removal proceedings (ie. deportation proceedings or immigration court), then you must wait for approval of your I-360 before asking the Immigration Judge to grant you a Green Card.
- Are you from El Salvador, Guatemala, Honduras, or Mexico? If you are from one of these countries, at this time, you need to wait additional time before you are eligible to apply for your Green Card. This is because there is a backlog of cases for applicants from these countries. Although it is hard to predict with any certainty how long your wait will be, currently that wait is around 1.5 to 3 years.
- Neither of the above? If you have never been in removal proceedings and are not from one of the backlogged countries listed above, then you will likely be able to apply for your Green Card at the same time as applying for SIJ status. That will also come with the benefit of applying for a work authorization while your application is pending.
Can I Help My Family Members?
Unfortunately, unlike other types of immigration statuses, Special Immigrant Juveniles are unable to petition to help their family members. This means that you cannot help your parents, even a parent who was not guilty of abuse, abandonment, or neglect, get legal status in the United States, even if you eventually become a U.S. Citizen. Similarly, you cannot petition for your siblings. If, however, your sibling has been similarly abused, abandoned, or neglect, he or she may pursue their own SIJ application, as long as they independently meet the requirements.
Even if you cannot help your family members obtain lawful status as a Special Immigrant Juvenile, they may have other avenues available to them. For example, if one of your parents was also abusive to the other, then the abused parent may qualify for VAWA [LINK] or U Nonimmigrant status [LINK]. Click here for more information.
DACA
Deferred Action for Childhood Arrivals
*STAY UP TO DATE ON THE LATEST NEWS REGARDING DACA HERE*
In 2012, under President Obama, the program known as Deferred Action for Childhood Arrivals (“DACA”) was announced as a use of prosecutorial discretion to allow certain people who came to the United States as children and meet several guidelines. A grant of Deferred Action does not provide lawful status, but it does confer certain benefits in two-year periods, such as work authorization and protection from deportation.
In 2017, President Trump announced the termination of the DACA program, but immigration activists and lawyers sued the administration over this change in policy. On November 12, 2019, the Supreme Court heard arguments on whether the Trump administration can end the program, but a decision is not expected before the Summer of 2020.
However, due to injunctions in place in the federal courts, USCIS is currently accepting and adjudicating renewal applications. Unfortunately, if you were never granted DACA but are otherwise eligible, USCIS will not accept those applications at this time.
Due to the ongoing nature of the litigation, it is important to stay up-to-date and to consult with an experienced immigration attorney regarding your DACA case.
ELIGIBILITY
- Were under the age of 31 as of June 15, 2012;
- Came to the U.S. before reaching your 16th birthday;
- Have continuously resided in the U.S. since June 14, 2007 up to the present time;
- Were physically present in the U.S. on June 15, 2012 and had no lawful status;
- Are currently in school, have graduated or obtained a certificate of completion from high school or GED, or are an honorably discharged veteran of the U.S. Armed Forces;
- Have not been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and do not pose a threat to national security or public safety;
- Currently hold or were previously granted DACA.
I was convicted of a crime. Am I still eligible?
Maybe. A single conviction for a misdemeanor does not make you ineligible for DACA. However, if you have questions about your eligibility due to criminal matters, you should schedule a consultation with our experienced team for us to evaluate the immigration consequences of any prior charge or conviction.
BENEFITS OF DACA
- Work Authorization
- Social Security Number & Card
- Protection from deportation (in most cases)
- Ability to apply for certain public benefits
- Eligibility for some financial aid or scholarships (varies by state)
- No accrual of unlawful presence while holding DACA
Resources:
INADMISSIBILITY WAIVERS
I-601 Waiver for Fraud and Other Inadmissibility Issues
An I-601 waiver is similar to a Provisional Waiver, except that it applies to different grounds of inadmissibility. While the Provisional Waiver addresses only unlawful presence and the 10-year bar, the I-601 waiver is available for a broad array of inadmissibility issues, including unlawful presence, immigration fraud, alien smuggling, health-related issues, and certain minor criminal issues.
While the Provisional Waiver is only available to those who are in the U.S. planning to pursue an immigrant visa at a consular interview abroad, the I-601 waiver is available for both those who are in the U.S. seeking adjustment of status or applying for an immigrant visa at a consulate office abroad but have been found to be inadmissible.
Like the I-601A waiver, the I-601 waiver requires you to demonstrate that your qualifying relative will suffer extreme hardship if you are not allowed to remain in or enter the U.S.
I-212 Permission to Reapply for Admission
If you have been removed from the United States, you are barred from reentering the country for a set number of years, depending on why you were removed. If you are subject to the 5-, 10-, 20-year bars and have not remained outside the U.S. for the requisite period, or if you are subject to the permanent bar, then you will need to ask the government to permission to apply for admission. The way to do this is by filing the I-212 waiver.
If you are still in the U.S. and thinking about applying for an immigrant visa at a consulate office abroad, you may be able to apply for the I-212 waiver prior to your departure from the U.S. in order to minimize the time you must spend away from your family.
When adjudicating an I-212 application, the officer evaluates the positive and negative factors in your case and weighs them against each other. Positive factors may include family and community ties in the U.S., the length of your residency, lack of criminal record, hardship to family members, and your overall good moral character. Negative factors may include criminal convictions, repeated violations of U.S. immigration laws, absence of close family or community ties, unauthorized employment in the U.S., the reason for your deportation, and existence of other grounds of inadmissibility.
Outside Links:
NATURALIZATION
Becoming an American Citizen
Applying for Citizenship is an exciting moment in an immigrant’s life. Not only it is almost always the end of the applicant’s dealings with the federal immigration agencies, but it symbolizes the full inclusion of the naturalizing immigrant into American society. In order to apply for naturalization, the applicant generally needs to be a legal permanent resident for five years (exceptions apply to applicants who are married to American citizens, to members of the military, and to other discrete categories) and a person of good moral character. Your attorney can help you evaluate your eligibility for naturalization.
There are many benefits associated with becoming an American citizen:
- A citizen can sponsor other family members to immigrate to the United States;
- There are several federal job opportunities available only to United States citizens;
• A citizen can travel with an American passport, and may spend unlimited time outside the country;
• The citizen is able to vote and run for office in local, state, and federal elections, having an active voice in shaping our government and future of our country.
Good Moral Character
By statute, each applicant for naturalization must be a person of Good Moral Character. Non-payment of taxes, alcohol or drug abuse, and non-payment of child support can be factors weighing negatively in a determination of Good Moral Character.
A finding that the applicant lacks Good Moral Character may result in denial of citizenship, and the need to re-apply for citizenship at a later point in time. If you feel that is your case, please contact us before applying for citizenship.
I was convicted of a misdemeanor. Am I eligible?
Clients who have committed a criminal violation in the past may still qualify for naturalization but should schedule a consultation to determine their eligibility. Some crimes—specifically crimes involving moral turpitude and the so-called Aggravated Felonies under immigration law—may bar naturalization and even trigger deportation.
Please note that even some non-convictions under state law may qualify as an Aggravated Felony for immigration purposes, one reason why it is important to schedule a consultation if you have any history of criminal charges and are thinking about applying for naturalization.
Derivative Citizenship
Under the Child Citizenship Act of 2000, when a parent becomes a citizen, children under 18, living as permanent residents in the United States, under the legal and physical custody of a parent may also be eligible to become citizens without the need to file an individual application.
Learn More:
Benefits of Naturalization
Resources:
- N-600 info
- Reading Flashcards / Study Resource
- Civic Lessons Guide / Practice for the exam
- Writing Flashcards / Study Resource
Success Story:
Ever since Harrison came to the United States, he dreamed of becoming a U.S. citizen and joining the army. This is his story:
CRIMINAL DEFENSE
For someone charged with a crime, retaining a competent and reliable attorney early on is crucial. The consequences of a criminal charge or conviction may follow a person for years and lead to loss of liberty, loss of money, difficulty finding employment and more.
Nowhere this is truer than for non-citizens, where a criminal charge or conviction can have devastating and long-lasting consequences, lead to permanent family separation, removal and permanent exclusion from the United States. In fact, even some misdemeanors may trigger a removal process if they meet the immigration law definitions of crime of moral turpitude or aggravated felony.
Post-Conviction Relief
In some cases, where it appears that justice may not have been done in a past criminal proceeding, it may be possible to file a post-conviction motion to vacate the initial plea and conduct a new trial. This is frequently seen in contexts where a plea of guilty was entered in violation of a constitutional right of the defendant.
For non-citizens, this may be crucial, especially if one is fighting removal based on a conviction which is several years old and where the defendant did not knowingly understand the consequences of pleading guilty.
Given that non-citizen defendants face a wide range of possible immigration consequences for even relatively minor offenses, the United States Supreme Court has recognized that the right to remain in the United States sometimes is more important than any jail sentence. In Padilla v. Kentucky, the Court said criminal defense attorneys have a duty to provide correct advice on where the consequences of a given plea will be “truly clear.”
In that sense, a plea done without a clear understanding of its consequences cannot also be made freely and knowingly.
For these reasons, the lack of correct advice may be held to be Constitutionally ineffective and give rise to the need for a new trial where a different outcome may be sought.