Published: November 9, 2011
This column is as much a warning to prospective victims as it is a source of basic immigration law information – especially for the 12- 15 million individuals living in the U.S. without immigration status. Why a warning? Because no matter the intelligence level of the prospective victim, the combination of his vulnerable state and the scammer’s profit motive, leads to the formation of the perfect storm in which the undocumented individual gets swindled. The swindlers are neighborhood “notaries” or consultants, as well as even a few established attorneys. Compared to the honest attorney who will conduct a consultation and advise the undocumented individual that no options to legalize his status exist at this time (and without a change in the law), the swindler will invent fictitious avenues toward legal status.
And the fictitious avenues sometimes will present as genuine, since after the swindled client plops down his $5,000 or $10,000 retainer, some type of approval notice may get issued by either the U.S. Department of Homeland Security/Citizenship and Immigration Services or the U.S. Department of Labor. As the con progresses, and the swindled client further convinces himself that a bona fide service is being provided, he avoids asking and/or getting real answers to questions like: A) “ok, yes, we have an approval on this stage of the case, but what is my end game?” or B) “when will I be issued my employment authorization, or green card?” In the context of the scamming lawyer/consultant – client relationship, the answers to those questions – which should have been asked from the start of the relationship – are: A) none and B) never.
An important step an undocumented, or any type of immigration law client can take to avoid getting scammed is by requesting that the attorney or service provider put in writing exactly which services are being provided and which goals are sought to be achieved. Although a lawyer can never ethically guarantee a result in any given case, he/she certainly can confirm in writing what the client qualifies to be considered for under present law, and that such goals are viable or achievable under present law. As to the fictitious avenues referenced above, the only way the swindled client will eventually achieve an end game, such as obtain employment authorization or green card is IF the law changes.
My guess is very few, if any, of the clients presented with fictitious avenues, would be otherwise willing to fork over tens of thousands of dollars to initiate a process if they knew the process they were initiating will only yield a result if the law changes. It’s the “if the law changes” part that I have seen the swindling attorney purposely forget to include in his discussion with potential victims who are all too ready and willing to put money in the swindler’s pocket.
For most of the undocumented population, it’s a waiting game – a wait for some type of change in the law to allow a genuine avenue to legalize their status. In the meantime, below is a summary of options at legalization or adjusting status for the undocumented or visa overstay under present law:
1. ) Visa Overstays May Be Able to Adjust Status if: they are the spouse of a U.S. Citizen, a parent of an adult (over 21) U.S. citizen, or child (under 21) of a U.S. Citizen. This class of immigrant may have the option to adjust status in the U.S. without having to return to their home country for any step in the process, notwithstanding unauthorized employment or overstaying their authorized period of stay in the U.S. (does not include those entering as “crewman”, or K-1 fiancés who did not marry their petitioner). Spouses of U.S. citizens, parents of adult U.S. citizens, and under 21 children of U.S. citizens are known as “Immediate Relatives” in immigration law talk and do not require additional legal qualification for eligibility to adjust status in the U.S. such as coverage under INA Section 245(i) – see below – to adjust status in the U.S.
Other types of non-“Immediate Relative” family based immigration applicants or employment based applicants who are visa overstays may be able to adjust their status in the U.S. but only if they were included in some sort of family or employment based immigration filing submitted prior to April 30, 2001, or January 14, 1998 – pursuant to Section 245(i) of the Immigration and Nationality Act –see below.
2) Entered Without Inspection (EWI): If you are the spouse of a U.S. Citizen, a parent of an adult (over 21) U.S. citizen, or child (under 21) of a U.S. Citizen who entered without being inspected by an immigration official (e.g. no visa), the option to adjust status in the U.S. only exists if you were previously included in some sort of family or employment based immigration filing submitted pursuant to Section 245(i) – see below.
Other types of non-“Immediate Relative” family-based or employment-based applicants who entered without visas (EWI) may be able to adjust their status in the U.S. but only if they were included in some sort of family or employment based immigration filing submitted prior to April 30, 2001, or January 14, 1998 – pursuant to Section 245(i) of the Immigration and Nationality Act.
3) EWI’s or Visa Overstays with an employer willing to facilitate a green card process, and they are a professional and/or have some special skills that may be scarce in the U.S. labor market, an employment based immigration filing may be an option if they are grandfathered under Section 245(i). Word of warning though: most candidates for this option may very well be waiting 5 years – give or take – before any type of immigration benefit, such as an employment authorization is in sight.
4) EWI’s or Visa Overstays who are Battered Spouses or Children of U.S. citizens or residents: whether you entered with or without a visa, or overstayed your visa, individuals who were the targets of their U.S. citizen or resident spouse’s or parent’s physical abuse or extreme mental abuse are eligible to be considered for US residence, and without having to depart the US for processing in their home country. No 245(i) grandfathering is required for this type of immigration benefit.
5) EWI’s or Visa Overstays who are the victims of certain types of crimes: whether you entered with or without a visa, or overstayed your visa, victims of certain types of crimes may be eligible for temporary status (U visa), including employment authorization, and eventually U.S. resident status. Victims of the following types of crime will be eligible for consideration for U visa status, and eventually U.S. residence: abduction, blackmail, domestic violence, extortion, false imprisonment, felonious assault, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, perjury, prostitution, rape, sexual assault, torture, trafficking, unlawful criminal restraint and, witness tampering – among others. No 245(i) grandfathering is required for this type of immigration benefit.
What is Section 245(i) of the Immigration Nationality Act? Section 245(i) allows for certain otherwise ineligible visa overstay/undocumented immigrants to undergo all steps in the U.S. immigration process in the U.S. and without having to return to a U.S. consular post in their home country (aka “245(i)grandfathering”). To be “grandfathered” under Section 245(i), the applicant must have been:
a. included in some sort of family or employmentbased immigration filing submitted prior to April 30, 2001, and they were physically present in the U.S. on December 21, 2000 OR
b. included in some sort of family or employment based immigration filing submitted prior to January 14, 1998 (with no physical presence requirement)
Relief in Removal Proceedings: If the visa overstay or undocumented immigrant gets arrested by immigration authorities and placed in removal proceedings, options to remain in the U.S. and even be awarded permanent residence by the Immigration Court indeed are available. Most notably, relief known as “Cancellation of Removal” allows those without status to be considered for a green card by the Immigration Court if: 1) they have been present in the U.S. for more than 10 years or more prior to being placed in removal proceedings. 2) they are of good moral character and 3) their U.S. citizen or permanent resident spouse, parent or child will suffer “exceptional and extremely unusual hardship” if they were forced to return to their home country.
For those who fear return to their home country due to persecution they might face on account of their race religion, political belief or “social group”, asylum-related relief (and eventually green card issuance) may be available from the Immigration Court.
Getting back to the discussion regarding the immigration law consultation: Sometimes the most valuable piece of information the client will pay for in the course of an immigration law consultation is that no option to legalize his status truly exists under the present law, and that for the time being, he should put his wallet away.
PUBLISHED November 9, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois