By Attorneys Devin M. Connolly & Nancy E. Miller
Countless numbers of people are waiting for immigration reform to happen after the 2016 election. They hope that a new president can work with a new Congress and pass legislation that will allow those in the shadows to come out into the sunshine of lawful status. They are also hoping that the Fifth Circuit Court of Appeals or the U.S. Supreme Court will lift the injunction and allow DAPA to become a reality. They may be personally residing in the United States without lawful status, or they may have family members or close friends in that undesirable position. But 2016 is a long way off and there is no guarantee of how the election will turn out and what a new Congress will look like.
So, what happens in the meantime? Anyone who has family members with lawful status in the United States may be eligible for a green card. This may even be true if they misrepresented a material fact in order to enter the country or if they came without papers, have unlawful presence or if they have a criminal record. It may even be true for those who were previously deported if they returned with inspection. Intending immigrants with those additional problems may need waivers but waivers do exist. Those who are not eligible to complete their processing in the United States may be able to do so at a U.S. Consulate with a provisional waiver of unlawful presence. Those with highly marketable skills may be able to immigrate through employment. Those who fear harm as a result of their race, religion, nationality, membership in a particular social group or political opinion in their home country may be able to obtain asylum in the United States.
In addition, there are potentially 4,000 cases granted each year in Immigration Court for those who have been residing in the United States for at least ten years, did not enter the U.S. as crewman or on “J” visa, have not been convicted of a disqualifying crime (including crimes of moral turpitude, drug-related convictions, aggravated felonies), can show good moral character and have a USC or lawful permanent resident parent, spouse or child who would suffer exceptional and extremely unusual hardship if they have to leave the United States. This form of relief is called cancellation of removal.
The final element stated above is frequently the most challenging – proving “exceptional and extremely unusual hardship” to a qualifying relative. The words “exceptional and extremely unusual” mean that the applicant must show that the hardship their qualifying relative would suffer if they were deported is substantially beyond what is typically experienced by qualifying relatives of those who have had to leave the country. However, while the standard is a high one, it is certainly reachable. What facts are relevant and how to prove them is best determined by an attorney who is skilled and knowledgeable in this area.
While lawful entry into the U.S. is not necessary for this relief, the manner of entry does become an issue if one has either been previously deported or allowed to leave under voluntary departure. Both events “break the chain” of physical presence in the United States. In addition, one who has either been out of the United States for 90 days at one time, or for 180 in the aggregate, has also broken that chain of physical presence.
Finally, an Immigration Judge has discretion to grant or deny applications for cancellation. They may consider many factors, including: length of residence in the U.S., family and community ties in the U.S., employment history, timely filing and payment of required income taxes, participations in clubs and religious organizations, criminal convictions that did not disqualify one from applying and other matters.
Finally, hope exists for those who already have a green card but fear losing it due to having lied in order to get the status or who have suffered criminal convictions after receiving their green card. Both situations place the non-citizen in danger of being deported from the United States. However, with the necessary qualifications, the immigrant may be eligible to apply for a waiver that will allow them to keep their green card and, potentially, to become a citizen.
The news can be disappointing and confusing. Jeb Bush and Hillary Clinton appear to support immigration reform but, assuming either is elected, they need a Congress that will work with them. It is anyone’s guess what will happen with the President’s proposed Prosecutorial Discretion proposals. But there is hope because there is relief available to many right now. Don’t give up hope. Talk to an experienced and knowledgeable immigration attorney about your situation. The future may be brighter than you think.
