Related Immigration Matters
Change or Extension of Status
You may qualify for a change or extension on your status if you’re already a nonimmigrant in the U.S., which can be crucial in cases such as a shift in your career, school, spouses, and the like. Of course, understand that applying for a change or extension can raise potential scrutiny of your intents and reasons, especially if your original visa encompassed a short duration of time (such as a B1 visa). If you are suspected of premeditating a change in status from the initial time of admission into the U.S. to fulfill some sort of activity, the attempt to change or extend will be deemed as a violation and rejected.
Some visa classes are not even subject to a change or extension of status. Some of these visas include D (crewmen), F1 (fiancée) and C (transit), while other statuses like the J (exchange student) visa often require at least a two-year residency beforehand. The exception to the J rule is foreign medical graduates, who may waive the two-year period.
If you decide to leave the U.S. while your change or extension of status application is pending, it will officially be considered abandoned. Furthermore, if your visa period has been overstayed or you are currently out of status, you must file for your nonimmigrant visa at the U.S. consulate within the original country. Because there are many intricacies to this process, the best way to solidify your change or extension of status is with a seasoned immigration lawyer on your side.
In the U.S., there are three main types of established employees who are granted the right to work (as dictated by Federal Regulations):
- Those who may work incident to their statuses, such as fiancées, lawful permanent residents, and those under temporary protected status;
- Those who are permitted to work for their petitioning employer;
- Those who are required to apply for qualification to work, such as the case with cancellation, withholding, asylum, and so on.
If you are temporarily in the U.S. and you meet your category’s specific employment eligibility requirements, you may apply with Form I-765 through the USCIS, which will initially request the Employment Authorization Document (also known as a work permit). You must have the physical permit before attempting work in the U.S., as mere phone approval is not substantial proof. However, if you are a U.S. citizen, a lawful permanent resident or a conditional resident, there is no need for you to apply for Employment Authorization; a passport, the Form I-94 (your Arrival/Departure record) and/or a green card is enough proof of eligibility.
The requirements for obtaining employment authorization are far and wide, depending on your status. For instance, required documents will vary depending on whether you are an asylee/refugee, an adjustment of status applicant, a foreign student, an eligible dependent, a nationality-based immigrant, a family-based immigrant, an employment-based immigrant, and so on. Because of this, the help of an experienced immigration lawyer is highly invaluable as the process can get tricky and complex.
For aliens who have traveled abroad and wish to re-enter the U.S. but do not have permanent residency, advance parole allows them to re-enter. It is critical that you apply for advance parole before leaving the U.S. as the U.S. will automatically consider your absence as a forfeit of your application. In fact, any attempt to file advance parole after departure will be denied. However, you may attempt to apply at your original country’s U.S. consulate while abroad for readmittance.
Most cases in which an alien will apply for advance parole have to do with having a pending adjustment of status application and must leave the U.S. for travel. Some other common situations include asylum/refuge, being granted Family Unity Program benefits, Temporary Protected Status, and a bona fide reason for temporary travel outside of the U.S. You may not qualify for advance parole if you are in the U.S. without a valid immigration status, the beneficiary of a private bill, or set for removal or deportation proceedings.
Detention & Bond
If you are a non-citizen held in a deportation proceeding, immigration officers have the power to detain you either with release conditions such as a bond payment, or without the option of bond. The event leading up to this type of detainment is either an aggravated felony (as seen by the Immigration and Nationality Act) or a certain offense against the act, making the alien inadmissible or subject to deportation. The Department of Homeland Security has the power to detain you if there are grounds for inadmissibility or deportation, but they may or may not remove you from the U.S.
Common convictions that constitute immigration detention include:
- Theft and other property crimes
- Sale, trafficking or possession of drugs
- Possession of weapons
- Sex offenses
- Domestic violence
- Aggravated felonies (rape, murder, or the illicit trafficking of firearms, destructive devices, drugs, explosives, or aliens)
- Moral turpitude crimes (fraud, forgery, blackmail, extortion, larceny, false pretenses, etc.)
The national rate of immigration detention has reached beyond any other reason for incarceration, which rapidly increased after the September 11th terrorist attacks in 2001. The Immigration and Customs Enforcement (ICE) agency is usually privately owned by different states’ private corporations, many of which are guilty of prison abuse, poor living conditions, ill treatment of prisoners, and even deaths from these various circumstances. ICE will aggressively arrest aliens without even reading the Miranda Rights. In addition, ICE’s worksite fees and civil judgments have skyrocketed earning millions of dollars in arrests.
At the required bail hearing, ICE will determine whether you are a “flight risk” or a dangerous factor to the community. In some cases, ICE will submit a bond amount of $1,500 or more and, if you are rejected for bond, you may petition for another bail hearing procedure every six months at the time of incarceration.
If you or a loved one has been detained by ICE, it is crucial that you seek an experienced immigration attorney immediately for the protection of your rights and to gain freedom from detainment. Without one, it is all too easy to be self-incriminating or for authorities to abuse the process.
As per the article on Detention & Bond, there are many circumstances that can make an alien removable or inadmissible. Fortunately, there are certain legal strategies that can relieve an alien from criminal convictions and eventually, removal.
Here is a general list of various ways to mitigate or eliminate the possibility of criminal deportation:
- Diminishing a felony to a misdemeanor or an infraction;
- Trimming a sentence of 365 days or more down to 364 days or less, thus changing the conviction from an aggravated felony;
- A writ of habeas corpus (summoning the alien before a judge or the court due to potential unlawful detention);
- A writ of error coram nobis (seeking to correct an error of conviction or illegal supposition to obtain justice);
- Motion to vacate a previous judgment;
- For cases that fall under the Ninth Circuit – expungement of a first-offense possession conviction and other first-offense charges for controlled substances that are minor in nature;
- Full, unconditional pardon for a conviction by the President of the United States or any U.S. stae governor.
While the list above states some potential possibilities for criminal relief for an alien, these methods cannot be implemented without strong legal representation. Hiring a knowledgeable immigration attorney now highly increases your chances of preventing ICE detainment and eventual removal or deportation. As these cases are extremely time sensitive, you should seek legal assistance as soon as you are aware of the criminal charges against you.