FAQs

I have lost my card! / My card was stolen along with my wallet.

You must file the I-90 application with USCIS in order to obtain a new card (which is once again green.) This application can be filed online OR by mail.

Once you have the I90 USCIS receipt, you can schedule an InfoPass appointment in the Local USCIS office. At the appointment, you can ask that a stamp be placed in your passport evidencing your permanent resident status.

Note: If you would like assistance to complete the application and discuss any concerns, please call our office to schedule an appointment.

My resident card will expire in six months. What should I do?

You can apply for a new permanent resident card by filing form I-90 with USCIS. You may want to consider applying for Naturalization, to become a US citizen. If you become a U.S. citizen, you will not need to renew your resident card. You may want to Consult with an attorney about your eligibility for naturalization and timing issues concerning filings for replacement of permanent resident card and Naturalization.

Are you a US citizen?

When you consult with an attorney specializing in immigration law, you may be asked many, many questions about the dates and places of birth of your parents and your grandparents because this MIGHT suggest that you have a claim to being a US citizen. If you do not have this information about your parents or grandparents, try to find this information before you meet with the attorney.

What if I have TWO birth certificates – one stating I was born in the United States and one stating I was born in another country? (If you have both, take them to the attorney to review.)
Has your mother or father become a US citizen? When did that happen? When did your stepparent become a US citizen?
When did your parents get married? Did they get married?
What is the status of your brothers and sisters?

Note: U.S. Citizens cannot be deported. That is why it is important to find out if someone in Immigration Court proceedings is a U.S. citizen.

When can I become a U.S. citizen?

Most permanent residents can apply to USCIS for naturalization four years and nine months after becoming a permanent resident.
A permanent resident who has been married to and residing with a US citizen spouse since becoming a permanent resident can apply to USCIS for naturalization 2 years and 9 months later.
A permanent resident child under the age of 18, whose parent becomes a U.S. citizen may become a US citizen automatically. The child will need to apply for a U.S. passport to prove his/her status. The child also can apply to USCIS for a certificate of citizenship. Often the US passport office requests this certificate, but it generally is not required to obtain a U.S. passport.
Other special filing procedures are available to certain permanent residents, including some spouses of members of the U.S. military and overseas employees of U.S. owned companies.

Are there any reasons why I should not apply to become a US citizen?

Yes, if any of the following apply to you, check with an attorney BEFORE you file for naturalization

Arrests since you became a permanent resident (even if dismissed or expunged)
Have not filed US Tax returns since you became a permanent resident (even for only one year of not filing)
Owe back taxes to the U.S. government (even if you have a payment plan)
Owe child support
Had an Immigration Court case ever
Been outside of the United States for more than six months at one time since becoming a permanent resident

Can my elderly mother be interviewed in her own language?

If she has been a permanent resident for 15+ years and is 55 or older or
If she has been a permanent resident for 20+ years and is 50 or older

Note: If she has had a medical illness/trauma that prevents her from learning English, she MAY be eligible for a Disability Waiver (these are not limited to the elderly.)

For which relatives can a U.S. citizen petition?

Parents
Stepparents if the marriage of one parent to this stepparent took place before the petitioning child turned 18
Child

Can I petition to USCIS for an Immigrant Visa for myself?

Yes, in limited situations including these:

Widow/Widower of US citizen
Work you do is in the National Interest of the United States
You are a person of extraordinary ability (top of your field) in arts, science, business
You are investing one million dollars in a NEW business that will create TEN full-time jobs for American workers
You are investing $500,000 in a NEW business in a Rural Area or an Area of High Unemployment and it will create 10 full-time jobs for American workers.
You are investing $500,000 in an approved regional center.

What is a Legal Entry into the US, does it matter, and how can I prove it?

Generally, you must have a document that shows that you presented yourself to a US inspector, officer at a land border or airport and applied to come into the US—and were admitted. There are some exceptions—when in doubt, consult with an attorney!! If you cannot establish a legal entry, you may not be able to apply for permanent resident status in the US. You may have to apply for an immigrant visa outside of the US at a US Consulate in your home country. AND if you leave to go apply for the immigrant visa, you likely will not be able to return to the US for either three years or ten years, without a Waiver.

To file for adjustment of status with USCIS, you generally must be “in status” with a document showing that you entered the U.S. legally AND maintained or stayed in a legal status through the time that you file your application for permanent resident status. The starting place always is LEGAL ENTRY proof unless you fit into a 245i or other exception.
If you are applying for permanent resident status as the spouse of a US citizen, the parent of a US citizen over the age of 21, or the child of a US citizen, you only must establish a legal entry. You do not have prove that your stay has not expired.
Documents showing legal entry can include: I94 document, Border Crossing Card, parent’s passport with visa and listing of children on the opposite side of the identity page or on the visa page. Canadian citizens can be deemed to have entered the US legally even though they have no I94 entry departure document. A stamp from an immigration official in your passport or your parent’s passport showing admission to the US may suffice.
Missing documents that would show legal entry into the US: IF you know that you entered legally but have lost the passport and other documents, you can file an I102 application with USCIS that sometimes does lead to a replacement document being issued. You can file a request for a copy of your record but this can take a year or longer for a response.

How can I get a Work Permit?

The USCIS can issue work permits (Employment Authorization Documents) But ONLY in very limited situations. Some common ones are:

You are an applicant for permanent resident status
You have been granted asylum or withholding of removal
You have a student visa (F1) and your employment has been authorized by your Student Advisor
You have been admitted to the US in L2, E1 or E2 dependent spouse classification. (NOT for F2 or H4 spouses!)
You have been granted deferred action.

Should an employer file a labor certification application for an individual who is not in the US in legal status?

CON: If the individual is employed by the employer, filing a labor certification application is an admission that the employer is knowingly employing an individual who does not have authorization to be employed. If the individual is not 245i eligible, she will have to deal with consular processing in the future with the uncertainty about when/if she might return. And, unless she has a qualifying relative, she will not be eligible to apply for a waiver that would allow her to return without spending 10 years outside of the US. The cost of recruitment and of legal fees to try to get someone an immigrant visa in three to ten years makes no economic sense. (Since July 2007, the employer must bear the bulk of these costs.)

PRO: If the employer does not file a labor certification application, the individual may never have any other opportunity to apply for an immigrant visa. Filing the application is possible only after the employer conducts recruitment that establishes there are no qualified and or available US workers. It is a way an employer can try to convey to the government how unworkable the immigration laws are. The cost of recruitment and of legal fees to try to get someone an immigrant visa 3 to 6 years later makes economic sense if it has been impossible to find American workers to fill this job. If there is comprehensive immigration reform, it is possible that individuals will have to have either an employer or family petition filed in order to immigrate in the future.

MIDDLE GROUND: Testing the labor certification waters may be a sensible option. After obtaining the prevailing wage for the position to be filled, the 30 day job order with the state employment office can be filled. If there are no applicants, the employer may elect to proceed with the Sunday newspaper ads that are required. If, on the other hand, the 30 day job order produces a large number of applicants, the employer may decide not to proceed until the economic conditions change.

Does it make sense for an employer to file with the US Department of Labor and the USCIS for an H2A or H2B visa classification?

Not a program for undocumented workers. If the foreign nationals the employer wants to hire are in the US without immigration authorization, the employer may be able to complete the process successfully. BUT the foreign national will have to return to his country to apply for the H2A or H2B visa. And it is likely that he will be turned down for the visa classification when the US Consul determines he has been in the US without authorization. If the employer is not truthful with US government agencies about the location of the worker, the employer could face serious consequences. Relying on an outside contractor or employment agency can be risky also for the employer who signs over authorization to such contractors or agencies. The US Labor Department and the Department of Homeland Security are actively investigating misuses of H2B temporary visas.

Foreign workers outside of the US Without Prior Deportations or Overstays. If the foreign workers are outside of the US, it may make Sense to go through the Department of Labor process for H2B visas. The annual quota must be considered at the outset. The employer can go through the recruitment process and lose out as the quota closes.

Obligations/limitations. If the employer is successful in getting H2 employees, the employer must be aware of its obligations and avoid lending or selling the H2B employees. The employer must comply with the representations made to the Department of Labor and the Department of Homeland Security. And the employer must apply and petition annually for the visa classification.

Can an employer solve the employee’s immigration problems with the help of a Congressman?

The staff member(s) responsible for immigration matters of constituents have varying levels of knowledge about immigration matters. Having a Congressional inquiry about a case is not always helpful in getting a positive result. On the other hand, there is a reason why the USCIS has designated individuals to handle Congressional inquiries. When seeking Congressional help, it is critical to provide a CONCISE chronology of what has happened and what you would like the Congressman to achieve. Sometimes providing this to your client helps the client to understand what the situation is!

Does it matter how long I have been in the US if I have no immigration status now? Yes, it may!

Non LPR Cancellation of Removal is an option in removal proceedings (Immigration Court) only if you have been in the US for ten years or longer at the time the Notice to Appear is served (you are given a paper that tells you why you could be deported)
Adjustment of status based on marriage is possible if the petitioning Spouse is a US citizen and you have a legal entry into the US but no Current status or you are eligible for a 245i filing.
Adjustment of status based on REGISTRY is possible for an individual who entered the US before January 1, 1972 and maintained a continuous residence in the US thereafter. While there are fewer of these cases with the passing years, it is an excellent alternative.
LIFE Act and other legalization related adjustment applications continue to arise. The key starting point is to find out where the individual was in December 1981 and January 1982. To be eligible for legalization, an individual had to be in the US prior to January 1, 1982 and in violation of his/her immigration status. Example: A college student on an F1 student visa would have been eligible only if he was working without authorization or otherwise violating his status. and can prove it. There are special rules for agricultural workers, with the 1984-1986 time frame being the key.
NACARA eligibility for Guatemalans, El Salvadorans and former Soviet bloc nationals is tied to the individual’s date of entry into the United States.
Asylum applications are not an option for many individuals because they have been in the US for longer than a year. Limited exceptions apply relating to changed country conditions.

When the Immigration Judge says “removed” and there are no appeals left to the Board of Immigration Appeals or to the federal courts, is there nothing left to try? Not always!

Deferred action status. Since Immigration & Customs Enforcement (ICE) makes the determinations on Deferred Action requests, it is important that the client understands this is a long shot. The application or request must be persuasive. That does not mean that it must be voluminous BUT it must be compelling. The probability of adverse media coverage is definitely factored into the decision. The answer is not often given quickly. When the answer is affirmative, it will generally be for a finite period of time. With deferred action status, it is possible to obtain work authorization.

Second Opinions. You may have been told there is nothing left to try at this time. You may seek second opinions. You may go to a Congressman or Senator or your employer/relative/neighbor/church members may do this on your behalf. An accurate chronological summary of your case is critical in this situation. A private bill is a possibility but very unlikely to lead to a visa for you.

No options under existing law. YOU can continue to second guess what could have been done but many immigration cases are fairly cut and dry. The immigration laws over the past 12 years have become increasingly harsh with ever less room for creative and humane solutions.

Don’t leave and hope for change in the laws. You can try to stay in the US with no status and a final order of removal. But the US Immigration & Customs Enforcement is much more aggressive and active in looking for and finding individuals in this situation—and removing them.

Immigration to Other Country. You can consider immigration to a country other than your own. If you have no criminal record, this may be a viable option. It is best to begin to work on this option BEFORE you have a final decision. For some individuals, this may mean immigrating to another country and residing there legally for several years and then being able to immigrate to the United States or obtain a visitor’s visa to come to the United States.

Will the law change in time to help you?

The Supreme Court rulings on identity theft and on ineffective assistance of counsel in the criminal defense arena, as it relates to immigration consequences of a plea, may help some immigrants in the United States. Congress may realize that comprehensive immigration reform would be a significant way to boost the economy. So you hang on and hope for the best.

What is 245i and does it help me?

AKA “grandfathering.” This allows the applicant to adjust status (apply for permanent resident status in the US) even with an illegal entry, overstay or having worked without authorization if he is still in the US without departures/removals. Key questions are:

Was there a labor certification application filed with a state employment office prior to May 1, 2001 that named your parents, spouse (or ex-spouse) or you—or your spouse’s parent?
Was there an immigrant visa petition filed with the legacy Immigration & Naturalization Service with a postmark of April 30, 2001 or earlier that named your parents, spouse (or ex-spouse), or your spouse’s parents? Was there an immigrant visa petition filed with a postmark of April 30, 2001 that named you? Was the application or petition approvable at the time of filing?
If the answer to either of the prior questions is YES, was that petition or application approvable when filed?
- Petition had to be signed by the petitioner.
- For 4th preference sibling petition, petitioner had to be a US citizen. For 2d preference petition for a child, the child had to be single. A petition filed for a niece, nephew, cousin, aunt, or uncle would not have been approvable when filed.
- If the petition was filed for a spouse, the marriage had to be a bona fide one.
- Labor certification applications had to be filed and signed by an employer.
- Employment based immigrant visa petitions that required labor certifications as a basis for filing but were filed without one would not have been approvable when filed (unless the labor certification application had been approved and just was not included in the filing.
If the child named in a petition turned 21, he or she remains eligible for 245i adjustment of status.
If an individual has applied for 245i under one classification that is denied, she or he can apply again under a different classification.
Why does this matter?
- Generally it means an individual can avoid consular processing and the triggering of a 3 year or 10 year bar and the need to file for a waiver concerning unlawful presence. This is especially important if an individual does not have a US citizen or lawful permanent resident parent or spouse.
- For children named in a petition for one of their parents, it means they have options for becoming permanent residents even if they are now over 21 AND are otherwise eligible to apply for adjustment of status based on marriage or on employment.
- Filing a labor certification application may make more sense to an employer if the odds are increased that the employee will in the future be able to apply for permanent resident status and work authorization in the US. (Many individuals named in a labor certification will not be eligible for a waiver because of the lack of a qualifying relative. If they depart from the US to apply for an immigrant visa, they cannot return for 10 years. Most employers do not see this as a realistic scenario.)
What it does NOT do.
- Grand status to the grandfathered person to stay in the US while waiting for a visa to become available.
- Apply when no qualifying application or petition was filed until after April 30, 2001.
Some unique wrinkles:
- Requires that person have been in the United States on December 21, 2000 unless applying for adjustment of status based on a petition or application filed prior to January 14, 1998.
- BUT only the principal applicant and not his dependent family members have to prove physical presence on December 21, 2000.
- An after acquired spouse and children qualify if adjusting at the same time as the principal applicant.