Immigration law is an area of law that is great in volume and is daunting to navigate without legal counsel. Immigration law is changing rapidly on a day-to-day basis. It also has the most significant consequence to persons next to criminal law and family law. Like a puzzle, there are many pieces to consider.
Before determining how a Foreign National can enter the U.S., one must first consider if a Foreign National can even enter the U.S. (Inadmissibility) in the first place. Under the inadmissibility law, there are several grounds that the U.S. Citizenship and Immigration Services (“USCIS”) may use to deny Foreign Nationals entry to the U.S. such as health reasons, economic, crimes, prior immigration violations, and other grounds. Inadmissibility law not only applies to Foreign Nationals attempting to enter the U.S. for the first time, but it also applies to Foreign Nationals who have entered the U.S. without inspection (undocumented alien). Inadmissibility grounds may also apply to returning Lawful Permanent Residents if they are considered to be seeking admission or if they have been convicted of a crime in the U.S., leave the U.S., and attempt to return to the U.S.
Once a Foreign National is in the U.S., a Foreign National must comply with immigration and other U.S. laws to remain in the U.S. Under deportability law, there are grounds that USCIS may use to deport Foreign Nationals already in the U.S. such as health reasons, economic, crimes, unlawful status, entry in the U.S. without inspection, and other immigration violations.
Inadmissibility v. Deportability
The status of the Foreign National such as whether a Foreign National entered the U.S. without inspection or whether a Foreign National entered the U.S. legally, determines if a Foreign National is subject to the grounds of Inadmissibility or the grounds of Deportability. If a Foreign National entered the U.S. without inspection or illegally, the Foreign National is subject to the grounds of Inadmissibility. If a Foreign National entered the U.S. legally or after being inspected, the Foreign National is subject to the grounds of Deportability which are less consequential.
Waiver The law allows USCIS and consular officers to waive some of the inadmissibility and deportability grounds that a Foreign National is subject to. Most waivers are discretionary in nature and many factors are considered in allowing the waivers.
Immigration consequences of guilty pleas and convictions
Before Foreign Nationals plead guilty to any crimes in criminal court or to charges in Municipal Court, it is imperative that the Foreign National consults with an immigration attorney to determine whether the Foreign National will be subject to removal (deportation). In fact, the U.S. Supreme Court in Padilla v. Kentucky, 559 U.S. 356 (2010), ruled that defense attorneys are required to advise Foreign Nationals that their convictions may subject them to deportation.
Unlawful presence refers to a period that a Foreign National is present in the U.S. after entering the U.S. without being inspected or authorized. Unlawful presence also refers to a period that a Foreign National who initially was authorized to enter the U.S. overstays in the U.S.
Three-year bar A foreign National who remains in the U.S. in unlawful presence for at least six months but less than a year and seeks readmission in the U.S. is barred from entering for three years. This three-year bar only applies if the Foreign National leaves the U.S. and seeks to return. The period is not counted in the aggregate. If a Foreign National leaves before six months and seeks to return, the Foreign National will not be subject to the three-year bar.
Ten-year bar: A Foreign National who remains in the U.S. in unlawful presence for a year or more and seeks readmission in the U.S. will be barred from entry for 10 years. Again, this ten-year bar only applies if the Foreign National actually leaves the U.S. and seeks readmission.
Unlawful status Unlawful status is different from unlawful presence as unlawful status refers to a Foreign National who is violating their authorized status e.g. a student who works without seeking USCIS's approval or a student who stops attending school.
Contrary to popular belief, some Foreign Nationals come to the U.S. on a temporary basis in what the USCIS calls nonimmigrant status. Some come to the U.S. temporarily to tour the U.S., to receive medical treatment, to visit friends and family (B-2), to transact business (B-1), to study or train (F-1, J, M, H-3), to work here temporarily (H-1B, H-2A, H-2B, E, L, O, P, R, or TN visas), to seek protection from violence and crime (T or U visas), or for other reasons. Please see USCIS.gov for additional information.
Most Foreign Nationals though come to the U.S. to remain here permanently in what the USCIS calls immigrant status for various reasons such as to work here permanently, to live with their immediate family members, or to avoid political persecution or violence. Foreign Nationals can obtain immigrant status through family, employment, diversity lottery, asylum, and through other protective measures that USCIS has put in place.
A lawful permanent resident may seek naturalization/citizenship after five years of obtaining permanent residency and meeting other requirements. That period is reduced for persons who obtained permanent residence based on marriage or under the Violence Against Women Act (VAWA).
Saba is a diligent and knowledgeable immigration attorney and can assist clients in attaining nonimmigrant status including (H-1B), change of status, extension of status, adjustment of status or immigrant status (permanent residence), or citizenship/naturalization.
Saba can be reached at 201-937-7967 or by email at firstname.lastname@example.org
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