Margaret W. Wong & Associates - Immigration Lawyers
Tending to all your immigration needs

Common Immigration Questions & Answers

Our most frequently asked questions

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FIRM OVERVIEW

This Q&A is from many sources including AILA (American Immigration Lawyers Association) and our own conversations with clients. Please contact us if you have a question you cannot find here.

DACA Requires GED

Question: I crossed the border 10 years ago when I was 14 years old with a cousin. I never went to school here. I am now 24 years old with no family members here. What can I do?

Answer: You may be eligible for Deferred Action for Childhood Arrivals (DACA). What you need to do is begin taking GED courses. As soon as you start classes, you can file for DACA by completing the required form, providing evidence that you came to the U.S. before you turned 16, and providing evidence that you have resided in this country since June 2007 till the present. You also have to show that you were in the United States in June 2012.

U Visa                                                                              Contact Us

Question: Can a U visa help a male victim of verbal abuse and enslavement? I am 23 years old and for 2 years I have been married to a 30-year-old American citizen. She has a remodeling company so I work for her but she says I have no rights over her company. She only gives me an allowance and I can no longer send money to my family because she says that she will call immigration. I can only work and stay at home with her on weekends, no friends, nothing. She says it’s the price for freedom in the US. What can I do? She will not file any papers for me.

Answer: You first have to file a police report against her and explain what she is doing to you. If you help the police with their investigation and they file charges against her, then you have a possibility of obtaining a U visa. Do not be afraid to go to the police if you feel your life is in danger or that you are being forced to live inhumanely. The U visa is there to help people who are victims of a crime.

Leaving the US

Question: My brother is a permanent resident, A couple of months ago my mother in Peru had a heart attack so he went to see her. Once there her situation got worse, it has been close to 6 months, is my brother going to have problems coming back? He has only been a resident for a year.

Answer: If your brother returns within 6 months of his last exit from the United States, then he should have no problem when he returns. If your brother returns after 6 months of his last exit from the U.S., then Customs and Border Protection can question his intent to permanently live in the United States. Your brother should bring evidence when he returns to the U.S. of the reason why he stayed so long outside of the country. Evidence can include your mother’s medical record and documents which show intent to permanently reside in the U.S. These documents are tax returns, evidence of employment in the United States, evidence of immediate family members in the U.S., and other documents showing his intent.

Asylum: Sexual Orientation

Question: Is it possible to win an asylum case based on sexual orientation?

Answer: It is possible to win an asylum case based on sexual orientation; however, it depends on the country from which you come, any harm you experienced while in that country, and how you will be persecuted if you return.

Asylum: Example

Question: Which are the most recent and common asylum cases your firm has won?

Answer: There are many asylum cases our firm has won. These cases involve many different reasons for seeking asylum. For example, our firm helped President Obama’s aunt obtain asylum in the United States.

Asylum One Year Rule?

Question: We have often heard about the one-year rule when it comes to asylum claims. Can you explain this? Are there circumstances where it is possible to apply successfully for asylum after one year?

Answer: An applicant for asylum must file his or her application within one year of their last entry into the United States. If filed after one year, then that individual is time barred and is not eligible for asylum. This person, however, would still be eligible for withholding of removal. The issue is that withholding of removal requires a higher standard of fear and persecution. It also provides fewer benefits than someone who was granted asylum. An applicant for asylum may argue that there exists a changed circumstance or an exceptional circumstance for filing the application for asylum after one year has passed. Circumstances may be changed country conditions, lawful status in the United States, and other circumstances that can be deemed exceptional. You must, however, apply within a reasonable period of time after the changed condition or exceptional circumstance.

Asylum: Persecution Claims Require Proof                                             Contact Us

Question: In my home town, I suffered greatly at the hands of violent gangs. I escaped to the US with the intention of asking for asylum. I spoke to another attorney and they said my case was very difficult and I might not win. They said because I had no proof of the violence I suffered that the government might not believe me. Is this true? What kind of evidence do I need? I could not report the events to the police because they are so corrupt. Is the attorney right that my case is not strong?

Answer: To be granted asylum, you have the burden of proving that you suffered part persecution in your home country or have a well-founded fear of future persecution and that the persecution is on account of your race, religion, nationality, political opinion or membership in a particular social group. The testimony of the applicant, if credible, may be sufficient to meet the burden without corroboration. However, reasonable corroboration is expected. Applicants should provide country condition information, medical records, police reports, witnesses, and any other evidence to support their claim. If corroborating evidence is not available, you should be able to explain why. An experienced immigration attorney can help guide you and give ideas as to what evidence should be gathered. The type of corroboration will be different for every case.

Unlawful Entry Inadmissible to Getting Green Card

Question: I did not enter the US legally, but now my employer wants to sponsor me -- is that possible?

Answer: If a person did not enter legally and is now working for a company who wants to sponsor him, then that individual will not be able to adjust status to permanent resident in the United States. Entering without inspection is inadmissibility to getting a Green Card.

Changing Employers While Applying for Permanent Residency

Question: If I am in the process of applying for permanent residency through my employer, can I change employers as long as the new one agrees to sponsor me?

Answer: You can only change employers without disrupting your application if your application has been pending for longer than 6 months. Additionally, your new job with the new employer must be same or similar to the job you were sponsored for by your previous employer.

Immigration Reform

Question: President Obama says that immigration reform is one of his top priorities in his second term. What changes would you like to see?

Answer: I would like to see immigration reform tackle several key issues. First, I would like immigration reform to implement a temporary status for undocumented individuals who are currently in the United States. This status should, at minimum, allow an individual to obtain a work permit. Second, I would like immigration reform to eliminate the one-year filing requirement for asylum. Currently, if a person does not apply for asylum within one year of their last entry into the United States, then that person is barred from asylum. Immigration laws are very complex and this law is unfair for individuals who learn about asylum after the one year filing deadline. Third, I would like the government to reduce the backlog and long waits for individuals who are petitioned for in certain family based and employment based categories.

Removal Order; Missed the Hearing; Motion to Reopen

Question: What happens if many years after coming into the country I found out that I was ordered removed by an immigration judge because I didn’t attend a hearing that I never knew about. I have been living here, paying taxes, and have committed no crimes. What do I do? Do I have to leave?

Answer: Depending on the reason for missing the hearing, you may be able to file a motion to reopen in absentia. This means that you are asking the Court to reopen your case because you never received notice or there was an exceptional circumstance that prevented you from going to the hearing. Also, having different forms of relief available if your case is reopened is helpful. For example, but for the removal order, you are able to adjust status to a lawful permanent resident.

Appeal the Immigration Judge's Decision?                                                     Contact Us

Question: Once a judge has ordered that I be removed can I appeal? How does this work?

Answer: Yes, you can appeal an Immigration Judge’s decision. At the time of the decision you must reserve appeal. After reserving appeal, you must file a Notice to Appeal within 30 days with the Board of Immigration Appeals or BIA. The BIA will then review the decision of the Immigration Judge and determine whether the Judge’s decision was correct.

Work Authorization for Undocumented?

Question: If you are undocumented are there ways to get official work authorization from the government? Does it matter how you entered the country?

Answer: If you are undocumented, then you cannot receive authorization to work unless you have relief available to you such as Cancellation of Removal for Non-Permanent Resident, Asylum after 180 days, Adjustment of Status, and other relief. The manner of your entry into the United States is very important. For example, a person cannot adjust status in the United States if they were inspected and admitted into the United States.

Joint Citizenship

Question: Some countries allow joint-citizenship with the United States—what does this mean, and what are the benefits?

Answer: Joint or Dual citizenship means that a person is a citizen of two countries. There are no benefits you will receive in the United States for having joint or dual citizenship. Each country has its own laws governing citizenship and how to obtain it. However, a U.S. citizen who obtains citizenship in another country may lose their U.S. citizenship if they apply voluntarily, by free choice, and with the intention to give up their U.S. citizenship.

Visa: Nonimmigrant Has Trouble Obtaining Visa

Question: A permanent resident in the United States who has a relative living in India that wants to come to visit and see if the US is somewhere they might like to one day live. They keep having their request for a visa denied. What can they do?

Answer: When an individual intends to come to the United States on a nonimmigrant visa, then that individual must show intent to return to their home country. If an officer believes that your intention is to live in the United States rather than to visit, then he or she will deny the application for a nonimmigrant visa. To prevent this, these individuals should bring documentation showing that they will return to India. Examples of documentation includes a round trip ticket, evidence of immediate family members in India, employment in India, filing of taxes in India, bank accounts in India, and other evidence showing that they are more likely to return to India than remain in the United States.

Green Card: Two Year and Ten Year

Question: In some cases after marriage to a US citizen a two-year Green Card is granted and in other cases a ten-year Green Card. Why the difference? What happens at the end of the two years?

Answer: The difference arises from the amount of time two individuals have been married at the time of obtaining lawful permanent resident status. If an individual has been married to his or her spouse for less than two years, then he or she will receive a two-year conditional Green Card. If an individual has been married to his or her spouse for over two years, then he or she will receive a permanent Green Card without conditions. Congress decided to create this difference to prevent people from forming fake marriages in order to obtain a Green Card. If a person is given a conditional Green Card, then he or she must petition to remove those conditions within 90 days prior to their Green Card expiring. Once that person has satisfied USCIS by showing that their marriage was real and not fake, then he or she will be issued a permanent Green Card without conditions.

Immigration Reform                                                                              Contact Us

Question: My boyfriend came to the US illegally last month. Somebody told us that the new immigration reforms might not affect him because there is a cut off date. Is this true? What happens to people who come after that date?

Answer: Currently the immigration reform bill present before the House of Representatives in Congress has a cut-off date of December 31st, 2011. This would mean that anyone who came after this date may not benefit from the bill. Please note that the bill itself is not final and may change before it passes the House of Representatives.

Unlawful Entry

Question: I recently arrived in the United States. I have no documents and I am not able to find a job. I am very worried about being caught by border agents. I want to return to Mexico but I am very scared. Can I just go through the border checkpoint or will they arrest me?

Answer: Legally, you will have a 3 or 10 year bar if the government finds out that you were in the US illegally. So in the future if you want to legally enter the US, you may have a problem if you get on their radar by leaving through the border checkpoint.

EAD Held by Employer

Question: I am an agricultural worker here in the US. I have a work visa, but the money I earn is not enough and is not what was agreed. My employer takes money for rent, but I had organized to live with my cousin. The employer also makes us pay for food, but very rarely do we get the food. The employer also makes us pay for food, but very rarely do we get the food. I would like to leave this employer, but he keeps my work authorization card. I am afraid to ask him for it. What can I do? Can I report the card lost and get a new one and then go work for another employer?

Answer: If you have a valid employment authorization card which your employer is withholding from you, it may be advisable to report your employer to the police and get your card back and look for a new job.

Deferred Action

Question: My father came to the US illegally almost thirty years ago. He has lived a very quiet life and has caused nobody any harm. He paid taxes, although not every year he was here. He is an old, retired man who just wants to live out his days in the country he calls home. I am very worried that immigration might discover him and try to remove him. Can we do anything preemptively to prevent this? I have heard of deferred action requests and I wonder if this could help him?

Answer: A deferred action request could be an option for your father. Right now, if you do not need to get him work authorization, he probably does not need deferred action. However, if he is picked up by ICE at some point, it would be advisable to request deferred action in the form of a stay of removal.

Naturalization Denied                                                                              Contact Us

Question: I recently went through the naturalization process and my application was denied. I had a criminal record from seven years ago, but I was only in prison for two months. I have since not been in any trouble at all. Can I appeal the decision? Will I lose my Green Card?

Answer: It depends on the crime you committed. It is a good idea to see an attorney for help with potentially re-filing for naturalization.

H-1B Employer Downsizing

Question: I was one of the lucky people to get one of the H-1B visas and I was due to start working in October. I was just told by my employer that they are downsizing and won’t be hiring me. Is there anything I can do to protect the visa? Can I transfer it to another job if I can find one?

Answer: Yes, you can transfer to another job if you can find one. Your new employer will have to file a new H-1B petition for you.

Cancellation of Removal

Question: My brother is in prison for a drug and we have been told that he will be deported once he is released. He has since found out that his girlfriend, a US citizen, will give birth to his daughter in 6 months time, about 3 weeks before his release. They plan to get married. If they are married can we stop his deportation? Will the fact that he is the father of a US citizen make any difference?

Answer: If the drug crime is not considered an “aggravated felony” under immigration law, your brother may be able to apply for cancellation of removal. Cancellation is available to those who have been in the United States for 10 years and have U.S. citizen children or spouse. It is advisable for him to hire an immigration attorney.

S Visa or Asylum

Question: I work in a restaurant that was raided last week. Four of the staff were arrested for having no documents. I have work authorization while I wait for my asylum application. I have heard that if you agree to help the policy you can get a visa. If I help the police with their investigation of my employer can they get me a visa? Will this change my asylum request?

Answer: I believe you are referring to an S visa. In order to qualify for an S visa, you must: (1) possess reliable information regarding an important aspect of a crime or pending commission of a crime; (2) be willing to share this information with law enforcement officials or to testify in court; and (3) your presence in the US is necessary to the successful investigation or prosecution of the case. It is likely that, in this case, the police can get enough evidence on their own to prosecute your employer.

I-751 and Divorce                                                                              Contact Us

Question: Two months ago I filed my I-751 application after being married for two years. Last week my husband asked me for a divorce, but said he would wait until after my Green Card is approved. Can I get divorced while the application is pending and still get my Green Card, or should I take my husband up on his offer to wait?

Answer: As long as you are prepared to prove that your marriage was bona-fide at the time, you can still have conditions removed from your Green Card even if you are divorced. Since your I-751 is currently pending, it may be advisable to wait until it is approved.

I-130 to Bring Children to the US

Question: I have three sons living in Mexico and I would like to find a way for them to come to the US and join me. I just became a US citizen. My youngest son is only 14 years old. At the moment he lives with his mother, but if he could come to the US legally, he would move and live with me. Can he get citizenship because he is only a minor? My other sons are 18 and 19 years old. What can I do for them?

Answer: As a U.S. citizen, you can file an immigrant visa petition (I-130) for your children if they are unmarried and under the age of 21. They will go through an administrative review and interview process at a U.S. consulate in Mexico to verify the relationship and if they are otherwise admissible to the U.S. The entire process will take approximately a year and a half.

Marriage to an Undocumented Resident

Question: I want to get married but I am nervous about the immigration implications. I am a citizen, but my boyfriend has no legal status in the US and he has a criminal record. I am worried that he will get caught by immigration and be deported. If we are married can he still get a Green Card even though he came here illegally? Will his criminal record make any difference? Will they arrest him when we apply and they find out where he is?

Answer: If you get married, you will file an I-130 immigrant petition with your husband as the beneficiary to prove to USCIS that your marriage is real and not for immigration purposes. Because a U.S. citizen spouse is considered an “immediate relative”, your husband can immediately apply for his Green Card once your I-130 petition is approved. To speed things up, the I-130 petition and the I-485 application to adjust status to permanent resident can be filed with USCIS simultaneously. Barring any removal orders or outstanding warrants for arrest, your husband should not be arrested when he attends the I-130 interview at USCIS. Illegal entry to the U.S. and certain periods of unlawful presence in the U.S. are grounds for inadmissibility. However, certain individuals who had an immigrant petition filed for them before April 30, 2001 or who can demonstrate that their removal would cause extreme hardship to their U.S. citizen spouse or parent, may still be admissible. There are separate forms that you must file for those situations. Certain criminal convictions could also make someone inadmissible. You should consult an experienced immigration attorney.

Changing Your Immigration Lawyer                                              Contact Us

Question: I am very worried about the lawyer I hired for my immigration case. I have been doing a lot of research on the internet and I think the things my lawyer tells me are wrong. He is very hard to get hold of and I don’t think he is giving my case the right kind of attention. We have already entered the pleading where we conceded the charges against me, but I wonder should I tell the judge I want to change lawyer? If I think I am getting bad representation is there anything I can do?

Answer: Begin contacting other attorneys and if after talking to them you would like to change representation, your new attorney will enter their appearance and file a motion to substitute counsel with the immigration judge. Most immigration judges will grant the motion. However, do not wait until your case is approaching the individual hearing. Some judges do not look kindly upon a last-minute motion to substitute counsel because they view it as a delay tactic and may deny the motion.

Taxes

Question: I just received my DACA work authorization and I want to start paying back my taxes so that when the new law comes in I will be able to move quickly on the path to citizenship. What should I do? Do I need an immigration lawyer to help me or should I just contact the tax office and ask them?

Answer: Contact an experienced tax advisor.

Visas: College Does Not Require

Question: I have no documents here in the US, but I really want to go to college and study nursing. I have no social security so I can’t sign up for the classes. I also don’t qualify for DACA. Is there any way that I can get a visa to be a student even though I came illegally?

Answer: No, you will not be approved for a student visa. However, you are not required to have a visa to attend college. Some schools may require a social security number, but you can apply for a tax I.D. number and use that instead.

Visas are Free

Question: My friend paid $50 on the internet to enter the visa diversity lottery for a Green Card. I think that this might be a scam and that there is a way to do this for free. Is this true?

Answer: There are many scams surrounding the diversity visa lottery so be careful. There is no fee to apply for the lottery. See here for more information:

https://travel.state.gov/content/visas/en/general/fraud.html

https://www.consumer.ftc.gov/articles/0080-diversity-visa-lottery-scams

Removal of Property Owner

Question: The immigration judge ordered me removed and I have to leave in the next 60 days. I own a lot of property here in the US but I don’t have time to sell it all. What will happen to my property after I leave? If it sells after I leave will the government stop me from getting the money?

Answer: You can continue to own property in the U.S. if you wish. You may want to hire a property management agent to handle the management or leasing of the property or a real estate agent if you choose to sell the property. You can collect any proceeds from the rental or sale of the property as you wish.

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