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Monthly Archives: December 2020

Can an Employer Sponsor an Undocumented Immigrant?

By Peek & Toland on December 16, 2020

How can I adjust my legal status?

There are many paths to take to obtain various visas and absolution of undocumented status, and people often wonder whether or not their employer filing on their behalf is one of those options, especially if the employee in question is undocumented. There are many work visas that employers can use, but whether or not they apply to employees here unlawfully, illegally, or without status in the United States is the brass tacks of what many immigrants want to know. Unfortunately, the answer is complex.

One of the most difficult endeavors in immigration law is the pathway from having no status, expired status, or being undocumented. No matter which way you identify, changing from that status into a legal status can be quite complicated. In fact, transitioning from illegal to legal status can sometimes be an impossibility; however, there are a few ways that a person might be eligible to make that difficult transition and adjust their status to permanent residence in the United States.

Section 245-I

Of the many avenues people take to adjust their legal status, one of the oldest is under section 245-I. We don’t often see this option, as it’s been such a long time since it’s last been renewed. The last time USCIS renewed this ruling and made it available was nearly twenty years ago. To be eligible for this rule, an employer would have had to file an application on behalf of the undocumented employee before April 30, 2001, with the employee being physically in the United States by December 17, 2000. With the length of time that has passed since the 245-I ruling was an option, it’s understandable that we don’t often meet many people who fit those requirements. In the off chance that you do, or you are a beneficiary under somebody who benefited from section 245-I, that application serves as a waiver, or a perdón, as we say in Spanish.

Are you willing to return home for a chance to legally come back into the United States?

Another opportunity to adjust legal status is one that requires your willingness to return back to your country so you can apply for a waiver for a non-immigrant visa, such as any work visa, but only if you first go back to your country. The problem is that there is no guarantee of success, so there is a bit of risk involved in returning to your native country. For most people, though, the risk does not outweigh the possible reward, as many people who’ve lived here for years and know no life outside of what they have made in the United States—homes, children in school, deep ties to their community. Without knowing with certainty that they’re going to get approved for that waiver, traveling back to their native country is simply out of the question.

Could you be eligible for a work permit?

There is an option for which many people are eligible to adjust their legal status, which comes in obtaining a work permit. Remedies such as U-visa, DACA, or VAWA allow an eligible undocumented person to obtain a work permit through these limited programs, even if that person illegally entered the United States. Each program has its own set of requirements for eligibility that we’d be happy to discuss in detail with you.

DACA

Separate from a pathway to citizenship or legal standing is the possibility of obtaining deferred action. If you or someone you know is a young person who came to this country, DACA may be an opportunity about which you may want to speak to a lawyer.

Victims of Violent or Domestic Crimes

If you or a loved one has been a victim of domestic violence with a spouse who is a permanent resident or US citizen, it’s very much worth discussing your options with an immigration lawyer who can help you identify the best and safest means to stay in the United States.

If you have been a victim of a violent crime and you cooperate with the police and prosecutors, you may be eligible for U Visa. Whether or not you know who committed the violent crime against you or if either of you is undocumented is irrelevant.

Those are all different pathways to take without having to leave the country.

Overstaying Your Visa

Another predicament immigrants may find themselves in is having overstayed their visa, failing to return to their native country when they were supposed to have done so. This happens, and it’s usually for a lengthy period of time that the person has overstayed their visa. Most often, an employer is unfortunately not able to file for their employee to rectify this particular situation. As mentioned, unless you qualify for one of the options mentioned previously, there just are not many options for people who are undocumented to transition from undocumented to visa status legally within the United States, even if they have an employer who is willing to cooperate and work on their behalf. Simply put, it’s not as easy as you would think.

The options discussed here are just a few of the ways a person can work to adjust their legal status. If you think you might be eligible for one of the programs discussed here, it’s more than worthwhile to talk to a lawyer to see where you stand. As an immigration attorney, the need would be to evaluate various details about your background and your immigration history to make sure that we account for all of the possibilities and scenarios that could make you eligibility for adjusting your legal status or deferring action against you.

At Peek & Toland, we’d love to help you gain peace of mind and take steps to rectify your legal standing. Please tune into our updates every Immigration Wednesday or follow us on social media for up-to-date information.

Posted in Immigration

Immigration Accused Me of Fraud, Now What?

By Peek & Toland on December 2, 2020

What do you do if you’re at a port of entry or an airport and a CBP immigration officer accuses you of making a misrepresentation or a fraudulent claim? What do you do next? 

Immigration law has a strict punishment if you make a willful misrepresentation or fraudulent statement to immigration. A misrepresentation is when you knowingly or willfully misrepresent a material fact to obtain a visa or admission. A material fact is any statement that if immigration had known the truth, they would not have granted a visa or entry to the United States.

Material fact example

For example, a material fact can be when somebody who traveled before on a tourist visa, overstayed had a child here. They went back to their country to renew their visa but did not mention they have a child because it would be evident that they overstayed. 

Example of non-material fact  

We had a case recently where a Canadian client told immigration he was coming on a tourist visa to pick up his car in the United States and drive it back to Canada. Immigration allowed him ten days to go to the U.S. to pick up his car. He flies in the United States, but the client decides to leave the car and just flew back. He left before the ten days that he was given. However, the next time he talked to immigration officers, they were bothered by the fact that the purpose of his entry was to pick up the car. Was that a material fact? No. It had no bearing on whether or not he would have been admitted to the U.S. It was just a small change in plans once he got here. But you can find immigration officers making a case that something was material when it wasn’t. 

Did you knowingly do it? Did you say something that you knew was wrong or knew was a lie, or did you say something that you unknowingly know was not true? That could be potential questions that your attorney has to review. 

False Citizenship Claim 

There is one kind of claim that there is no waiver for, and that is a false citizenship claim. You cannot do that in immigration law because it’s the harshest punishment. You don’t have the possibility for a waiver. The only exception of that is if you have two citizen parents, and you just thought you were a citizen by nature of the fact that they were a citizen. It’s imperative to know that is one colossal disqualifier.

Waiver Requirements

1. Immigrant Visas 

People with these visas want to immigrate to the United States. They are usually attaining the visa through family or work. The purpose of coming to the United States is to become permanent residents. 

The immigrant waiver for misrepresentation for an immigrant visa is stricter than the non-immigrant one. Why? Because you have to have a U.S. citizen or permanent resident spouse, or a U.S. citizen or permanent resident parent to qualify. If you are the parent of a U.S. citizen or permanent resident, and you do not have a citizen or resident spouse, you are not eligible for this waiver. 

You will also have to show crucial evidence of extreme hardship. This is not just a given. 

2. Non-immigrant visas 

These are people coming on temporary visits such as tourism, as a student or for work. These people come knowing that they’re going to pass the time here. It could be a year or three years, but eventually, they will have to leave the country. 

Non-immigrants will need to fill out form I-92. It can be processed either at the consulate or ports of entry, usually in Mexico or Canada. It can take 5-6 months through the consulates. It could be 4-5 months at the port of entry. Therefore, you will need to do it in advance of your plan travel to make sure you have enough time to adjudicate when you want to come in. 

Non-immigrants are not required to show extreme hardships. 

There is a kind of a three-prong test to be granted the waiver: 

  1. Is there a risk or harm to society if they let you into the country? 
  2. How serious was the prior immigration violation or criminal violation? 
  3. What is the importance of the reasons for seeking entrance to the United States? 

However, luckily they’ve ruled that there is no requirement that your reason for entering the United States be compelling. So you don’t have to have some super important reason. 

These are tricky waivers. I would advise you to consult with or hire a lawyer to help you prepare for them. They’re not easily given. 

Posted in Immigration

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