If an Immigration Judge finds you to be illegally present in the United States, it does not necessarily follow that you will be deported. The laws provides you with many types of relief from deportation What follows is a brief explanation of how one becomes a US citizen by each of the above methods.
Chief among these are:
1. Waivers of excludability and deportability
2. Suspension of deportation
3. Adjustment of status to permanent residence
4. Asylum and withholding of deportation
5. Legalization and registry and, if all else fails
6. Voluntary departure
Waivers of Excludability and Deportability:
The immigration law enumerates various grounds by which an alien in the United States may be subject to deportation. A common ground of deportability provides that an alien may be subject to deportation if he was excludable when he entered the United States. There are many grounds of excludability found in the law.
Eligibility for waivers of deportability and excludability depend upon your ability to show "extreme hardship" to certain close family members who are US citizens or permanent residents if you are forced to leave the US. For example, if you have resided in the US for seven years, at least five of which were as a permanent resident, you may be able to qualify for a waiver of many grounds of deportability and excludability. However, recent laws severely limit your ability to obtain such a waiver if you were convicted of any wide range of crimes.
Cancellation of removal:
A deportable alien may apply for permanent residence from an Immigration Judge through Cancellation of Removal if he meets the following requirements:
1.He must have been continuously physically present in the US. for at least ten years before he is placed under removal proceedings. Absences of less than 90 days, or 180 days in the aggregate do not affect the continuity of one's physical presence.
2. He must be a person of good moral character.
3. He must not have been convicted of certain designated offenses.
4. He must establish that his remove would result in exceptional and extremely unusual hardship to his US citizen or permanent resident spouse, parent or child.
Adjustment of Status to permanent residence:
A deportable alien who is an "immediate relative" because he is the parent, spouse, widow or child of a US citizen may be eligible to apply to the Judge to adjust his status to that of a lawful permanent resident. Also qualified to apply for adjustment of status is any alien whose priority date for permanent residence is "current" Aliens who obtained conditional permanent residence based upon their marriage, or the marriage of their alien parent, to a US citizen or permanent resident may have their legal status terminated by the INS if they fail to meet certain requirements. However, once INS places them under deportation proceedings, they may renew their applications for permanent residence before an Immigration Judge. The same holds true for an alien who becomes a conditional permanent resident based on investment.
Asylum and withholding of deportation:
Those who have a well-founded fear of persecution if they return to their home country may apply for asylum if their fear is based on any of the following grounds:
1. Political opinion
2. Religious belief
5. Membership in a particular social group
If a person is granted asylum, after one year he may apply for permanent resident status.
Withholding of deportation is similar to asylum, with the following two exceptions
(1) It does not permit the alien to apply for permanent residence, and
(2) It only prohibits the INS from deporting the alien to the country where he fears persecution, not to third countries, which are willing to accept him.
Legalization and Registry:
Once an illegal alien has been found qualified for legalization or "amnesty" by the INS, the deportation hearing will typically be terminated since the alien will have attained the legal right to remain in the United States.
Registry is another means of attaining lawful permanent residence in the United States. It is available to aliens who have resided continuously in the US. Since prior to January 1, 1972, who are persons of good moral character, who are not deportable on certain aggravated grounds, and who are not ineligible for citizenship. Registry may be applied for affirmatively, not only as a defense to deportation.
If you are ineligible for all of the above forms of relief from deportation, you should still consider applying for voluntary departure. Departing voluntarily from the US. avoids both the stigma and the legal impediments to return to the US imposed by deportation.
Voluntary departure is available to aliens who are not deportable on aggravated grounds, who have the means to pay for their departure from the US., who agree to depart within a period of time granted by the Immigration Judge, and who can establish good moral character during the previous five- year period.
All forms of relief from deportation, except withholding of deportation, may be granted at the discretion of an Immigration Judge. Final orders of an Immigration Judge may be appealed to the Board of Immigration Appeals, and from there to the appropriate US Court of Appeals.
There are a number of types of temporary visas, which allow you to be employed in the US What follows is a short list of some of the most common types of temporary work visas:
:: Treaty trader (E-1)
:: Treaty investor (E-2)
:: Specialty Occupation Visas (H-1B)
:: Exchange Visitor (J-1)
:: Intra company Transferee (L-1)
:: Persons of Extraordinary Ability (O)
:: Athletes and Entertainers (P)
:: Religious Worker (R-1)
:: Family member
Treaty trader (E-1) - An owner or a key employee of a business which conducts a substantial volume of trade between the US and your country of citizenship, you may be eligible for E-1 status.
To qualify, your country must have an appropriate treaty with the US Countries which have E-1 treaties with the US include Argentina, Australia, Austria, Belgium, Bolivia, Brunei, Canada, China (Taiwan), Colombia, Costa Rica, Denmark, Estonia, Ethiopia, Finland, France, Germany, Greece, Honduras, Iran, Ireland, Israel, Italy, Japan, Korea, Latvia, Liberia, Luxembourg, Mexico, Netherlands, Norway, Oman, Pakistan, Philippines, Spain, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom and Yugoslavia.
Treaty investors (E-2) - An owner or a key employee of a company where a substantial amount of capital has been invested in the US and jobs have been created for US workers, may be eligible for E-2 status.
To qualify, your country must have an appropriate treaty with the US Countries which have E-2 treaties with the US. include Argentina, Armenia, Australia, Austria, Bangladesh, Belgium, Bosnia-Herzegovina, Bulgaria, Cameroon, Canada, China (Taiwan), Colombia, the Congo, the Czech Republic, Ecuador, Ireland, Italy, Japan, Kazakhstan, Korea, Kyrgyz Stan, Liberia, Luxembourg, Mexico, Morocco, Moldavia, Netherlands, Norway, Oman, Pakistan, Panama, Philippines, Poland, Romania, Senegal, Slovakia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Tunisia, Turkey, United Kingdom, Yugoslavia and Zaire. A number of other E-2 treaties have been signed, but are awaiting ratification by either the US. or the other country involved. To see what new E-2 countries have become effective since this was written, click here.
Specialty Occupations (H-1B) - Up to 65,000 professional employees may receive visas annually to work for US employers. The employer must certify to the government that you will be employed in an occupation for which the minimum entry requirement is a university degree. In addition, the employer must pay you at the average or "prevailing" wage rate for persons in your occupation and geographic location. Usually, H-1B status will be granted in three-year increments, with a maximum duration of six years. H-1B employees include, but are not limited to, accountants, architects, computer programmers/systems analysts, dentists, engineers, financial analysts, medical technologists, occupational therapists, pharmacists, physical therapists, physicians, researchers, scientists and teachers.
Exchange Visitors (J-1) - The US. Information Agency (USIA) permits a wide variety of organizations and universities to sponsor persons as exchange visitors.
Some programs allow you to be employed while other programs are for students only.
Programs, which involve governmental funding, skills enumerated on the Asia's Exchange Visitors Skills List, or graduate medical training subject you to a two-year foreign residency requirement. This means that upon completion of your program, you are obligated to return to your home country for a minimum of two years. "The foreign residency requirement may be overcome by (1) obtaining a "no objection" letter from your native country (not available to those pursuing medical residencies or fellowships in the US), (2) showing that your spouse or children who are either US citizens or permanent residents will suffer "exceptional hardship" if you are required to return to your home country for two years, (3) demonstrating that you have a well-founded fear of persecution if you return to your home country; or (4) sponsorship from certain interested governmental agencies. In each of these cases, approval from the USIA and/or the INS is required".
Intra company Transferees (L-1) - If you are an executive, manager or a person with specialized knowledge who is employed by a company abroad, you may transfer to the US branch of the company (or to a parent, affiliate or subsidiary company in the US) to assume a similar position. To qualify, you must have been employed in a similar position for the foreign-based company during one of the past three years before you entered the US. The maximum duration of L-1 status is seven years for executives and managers and five years for persons with specialized knowledge.
Persons of Extraordinary Ability (O) - Persons of extraordinary ability in the arts, sciences, education, business or athletics, you may be granted an O-1 visa. If you are accompanying an O-1 visa holder in an artistic or athletic performance, you may qualify for an O-2 visa.
Athletes and Entertainers (P) - An athlete who has performed individually, or as part of a group or team, at an internationally- recognized level of performance, may be issued a P-1 visa. P-1 visas are also available to entertainers who perform in a group, which has attained international recognition. Artists and entertainers who enter the US under a reciprocal exchange program may be granted P-2 visas while those entering in a culturally unique program may receive P-3 status.
Religious Workers (R-1) - Persons coming to the US as a minister or have a religious vocation or occupation, may qualify for an R-1 visa. The applicant must have been a member of the religious denomination for the previous two years and be coming to the US to work for a bona fide nonprofit religious organization. The maximum duration for R-1 status can be held for a maximum duration of five years.
Family members - In each of the above categories, your spouse and unmarried children under 21 years of age may accompany you to the US However, as a general rule, family members are not permitted to work in the US
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