Frequently Asked Questions
Immigration law is complicated and difficult to navigate without a knowledgeable and experienced legal team on your side. Whether you are seeking to immigrate, start your own business, bring a family member, or fight against deportation, the Peek Toland & Castañeda PLLC can provide the guidance you need for success. Our Austin immigration attorneys specialize in immigration law and speak both English and Spanish. Contact us online or call us to learn about our services at (512) 474-4445.
We have organized the most frequently asked questions regarding immigration based on the following topics:
The basic process requires a person to be a permanent resident. Additionally, an individual may be eligible for naturalization if s/he is:
- 18 or older;
- A permanent resident for a specific amount of time (usually five years, but less for some individuals);
- A person of good moral character;
- Has basic knowledge of U.S. history and government;
- Has a period of continuous residence and physical presence in the U.S., and
- Able to read, write, and speak English. However, there are exceptions to this rule based on the applicant’s age and years of permanent residence in the U.S.
Additionally, certain spouses of U.S. citizens and those who have served in the U.S. military during the past war or currently in combat may be eligible to apply for naturalization sooner. However, fulfilling all these requirements does not necessarily mean a person will be granted citizenship. A person seeking citizenship must also pass an English literacy and civics test, show that s/he is of good moral character, and take an Oath of Allegiance to uphold the U.S. Constitution.
What does good moral character mean?
The U.S. government has determined that the definition of good moral character requires that the person applying for citizenship be of good moral character for at least five years prior to their application.
The law states that a person is not of good moral character if:
The person was convicted of an aggravated felony after November 29, 1990, even if the conviction was more than five years prior to the citizenship application. A person seeking citizenship should consult with an attorney if they are unsure if their prior misdemeanor or felony is classified as an aggravated felony under U.S. immigration law.
Even if an individual has never been convicted of a felony, the U.S. government may decide to review an individual’s entire history prior to the five years of good moral character to determine whether the individual is of good moral character.
Do I need to study for the Naturalization and English Test?
Yes, it is recommended that you take a moment to review the study materials that are available online. If an individual fails either portion of the Civics Test or English Test, s/he will be granted one additional opportunity to take the section of the exam s//he failed within 90 days of failing. If the individual fails the exam a second time, his or her application will be denied.
Below are links to information on each exam, as well as study materials.
- Information on How the Test is Scored
- Study Materials for the U.S. Civics and History Test
- Study Materials for the English Test
- The Naturalization Self-Test
What happens if my Naturalization application is denied?
You will have the following two options:
The denied applicant may request a N-336 Hearing with a new hearing officer;
The denied applicant may petition a federal district court to review the application. This is a form of judicial review.
If your Naturalization application has been denied, please contact the Peek Toland & Castañeda PLLC. Our attorneys have years of experience with immigration law and can help you understand your options.
How can I determine if I am eligible for Citizenship through my parents?
You may be eligible for citizenship through your parents if:
Each parent is U.S. citizens, both parents were married at the time of birth, and at least one parent was living in the U.S. prior to the birth of the child;
One parent is a U.S. citizen, both parents were married at the time of the birth, the U.S. citizen parent had been physically present in the U.S. or its territories for a period of five years at some time in his or her life prior to the birth, in which two of those years were after the parent’s 14th birthday, and the child’s birthday is on or after November 14, 1986, or
One parent is a U.S. citizen, both parents were married at the time of the birth, the U.S. citizen parent had been physically present in the U.S. or its territories for a period of ten years at some time in his or her life prior to the birth, in which five of those years were after the parent’s 14th birthday, and the child’s birthday is after October 10, 1952 but before November 14, 1986.
How can I determine if I’m eligible for Automatic Citizenship through my parents?
A child born outside the U.S. is a citizen after birth through their parents if:
- At least one parent is a U.S. citizen, the child is currently under the age of 18, residing in the U.S. in the legal and physical custody of the U.S. citizen parent, and the child was under the age of 18 or not yet born on February 27, 2001; or
- The child was under the age of 18 from December 24, 1952 to February 26, 2001, the child was residing as a green card holder in the U.S. and one of the following events took place:
Both parents naturalized the before the child’s 18th birthday or if
- One parent is deceased and the surviving parent naturalized before the child turned 18;
- The parents legally separated and the parent maintaining legal an physical custody naturalized before the child turned 18;
- The child was born out of wedlock, there is no legally established paternity and the mother naturalized before the child turn 18; or
- The child was adopted by a U.S. citizen parent, the child resides legally in the U.S. in the legal and physical custody of the U.S. citizen parent and meets the following conditions after February 27, 2001 but before his or her 18th birthday:
•The adopted child was adopted before his or her 16th birthday and the parents had legal custody and resided with the child for at least two years; or
•The child was admitted to the U.S. as an orphan (IR-3) or Convention adoptee (IH-3) whose adoption by his or her U.S. citizen parent(s) was fully completed abroad; or
•The child was admitted to the U.S. as an orphan (IR-4) or Convention adoptee (IH-4) who came to the U.S. to be adopted and the child’s adoptive parent(s) completed the adoption before his or her 18th birthday.
How do I determine if I’m eligible to apply and obtain a green card through a family member?
An individual may be eligible to obtain a green card if the applicant is:
- An immediate relative of a U.S. citizen, which includes the following:
•An unmarried child under the age of 21; and
•Parents of a U.S. citizen petitioner who is 21 years or older;
- A family member of a U.S. citizen fitting into a preference category, which includes the following:
•Unmarried sons or daughters over the age of 21;
•Married child(ren) of any age;
•Brothers and sisters (if the U.S. citizen petitioner is over the age of 21).
- A family member of a green card holder; which includes the following:
•A spouse; and
•An unmarried child of the sponsoring green card holder;
- A member of a special category, which includes the following:
•Battered spouse or child;
•A K non-immigrant;
•A person born to a foreign diplomat in the U.S.;
•A V non-immigrant; or
•A widow or widower of a U.S. citizen.
Am I eligible for a green card through my employer?
There are primary methods of obtaining a green card through an employer; however, before an immigrant seeking a green card through an employer can apply for a green card, the employer may have to meet certain requirements with the Department of Labor.
The four methods of obtaining a green card through an employer are as follows:
- Green Card Through a Job Offer
- Green Card Through an Investment
- Green Card Through Self Petition
- Green Card Through Special Categories of Jobs
For example, an employer seeking to employ an immigrant with a certain status must show that there are not enough able, willing, and qualified U.S. workers in the geographic location who can fulfill the position and that no U.S. workers are displaced by the foreign workers. In some instances, an employer may seek a foreign employee with extraordinary ability in a certain profession, and investors or entrepreneurs are given priority to immigrate.
What are the requirements for a Visa?
A foreign visitor must disprove a presumption that s/he is intending to immigrate. To disprove this presumption, a visitor must demonstrate to the consulate or consular officer at the embassy:
- The purpose of the foreign visitor’s stay in the U.S. is for business, pleasure, or medical treatment;
- The visitor plans to stay in the U.S. for a limited, specific amount of time;
- The visitor has evidence of sufficient funds to cover the expense of his or her stay in the U.S.;
- The visitor has evidence of compelling social and economic ties abroad; and
- The visitor has a place of residence outside the U.S. in addition to binding ties that ensure their return abroad at the end of the visit.
What is the process of obtaining a Visa?
To obtain a visa, a foreign visitor must apply for a visa at the U.S. Embassy or the consulate in the country or jurisdiction where the visitor permanently resides. A foreign visitor may apply for a visa outside his or her country; however, it is more difficult to qualify for a visa outside the visitor’s home country.
Anyone between the ages of 14 and 79 is required to participate in an interview process before obtaining a visa. Even though those over the age of 80 and under the age of 13 are generally not required to interview, the U.S. Embassy or consulate may still request an interview.
The interview is the first step for applying for a visitor visa. The wait time for obtaining an interview can be long; therefore, it is important for the foreign visitor to begin the visa application process as soon as possible.
What do I do if my Visa application is denied?
If an applicant’s visitor visa is denied, an applicant may re-apply for a visa if s/he has evidence to overcome the denial. Please contact the Peek Toland & Castañeda PLLC if your visitor visa has been denied and our experienced immigration attorneys can help you with your re-application.
What is deferred action for childhood arrivals?
Deferred action is not permanent residency and it is not citizenship. Deferred action is a discretionary act of prosecutorial discretion that defers a removal action of an immigrant. While the immigrant is in deferred action, the immigrant will not be removed (deported) from the U.S.
What are the requirements to be eligible for deferred action?
- The immigrant must have come to the U.S. under the age of sixteen;
- Have continuously resided in the U.S. for at least five years preceding June 15, 2012 and must be present in the U.S. on June 15, 2012;
- Currently in school, a graduate from high school or GED recipient, or is honorably discharged as a veteran of the Coast Guard or Armed Forces of the U.S.;
- Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and
- Not above the age of 30.
How long will a period of deferred action last?
According to the U.S. Department of Homeland Security deferred action will only be granted for two year periods. When the two year period expires, the immigrant will need to renew the deferred action and have his or her case reviewed.
What if I have a pending removal (deportation) case against me or I have a final order of removal (deportation) against me?
The new directive applies to those individuals who have pending removal cases against them and those who have final orders of removal against them. Regardless of pending removal proceedings or a final order of removal, an individual who meets all the criteria may request review of his or her case for deferred action.
Does deferred action apply to individuals who are not in removal (deportation) proceedings or have a final order of removal against them?
Yes. However, those individuals who meet the criteria must request review by the USCIS.
Does deferred action provide individuals with a path to citizenship or permanent legal status?
No, deferred action does not grant any further permanent legal status or citizenship. However, deferred action does not allow those individuals who meet the criteria to live and work in the U.S. for the two year period.
If I’m approved for deferred action can I apply for employment authorization?
Yes, those individuals who meet the criteria and are approved for deferred action may apply for employment authorization.
How will the recent news affect the DREAM Act?
Based on the information we have received, Congress is still considering the DREAM Act and how best to provide certainty to young immigrants living in the U.S.
Contact a Texas Immigration Law Attorney
If you have additional questions about immigration law or would like to consult with an attorney about your eligibility, contact the Peek Toland & Castañeda PLLC. Our experienced Austin immigration attorneys look forward to helping you with your case and answering your questions. Complete an online contact form or call us at (512) 474-4445 for a consultation in English or Spanish.