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Cancellation of removal: How to avoid deportation and obtain a green card

Green CardIt’s one of the biggest fears of undocumented immigrants: getting a notice to appear for a removal proceeding that may end in deportation. Often this happens after an arrest for another offense and so it makes an already stressful situation even worse. Fortunately, some immigrants can avoid deportation and even get a green card in the process. Section 240A(b) of the Immigration and Nationality Act (INA) provides one of the most common ways immigrants are able to get cancellation of removal.

Under the rules, undocumented immigrants must meet the following requirements in order to cancel their removal:

  1. Continual presence in the US for at least 10 years.

This means the individual can’t have been outside the US at any time for more than 90 consecutive days or outside the US for 180 days in the aggregate over the last 10 years.

It also should be noted that the 10 year time frame may not be measured the way individuals think. The clock stops running:

  1. When the immigrant receives the notice to appear regardless of when they actually appear or when they receive the order of deportation; or
  2. In the case of commission of certain crimes listed in INA sections 237(a)(2) and (3), when the crime was committed regardless of when a notice to appear is served.

For example, you’ve been in the US for eight years and you are arrested for possession of a firearm. This would stop the clock right away – so you couldn’t satisfy the 10 year requirement.

  1. Demonstrate good moral character.

This is decided on a case-by-case basis, however, individuals who have committed any offenses listed under INA sections 212(a)(2), 237(a)(2) and 237(a)(3) are disqualified from proving good moral character. These crimes include those involving narcotics, firearms as well as other serious crimes.

You should note that paying taxes on a timely basis every year will help your case. This demonstrates continuing physical presence in the US because if you’ve been paying taxes every year, it is likely you’ve been present in the US. It also shows good moral character. However, you must have been paying every year, not a lump sum every few years. Also remember that you should be reporting actual income. It is not believable to be reporting income that is too low for you to be living on, particularly if you have family with you. You can refer to the poverty guidelines for your region, which provide information on income for your region.

  1. Your deportation would cause extreme and exceptional hardship to your spouse, child or parent who is a lawful permanent resident or US citizen.

What is important is the hardship caused to the spouse, child or parent, not the hardship to the undocumented immigrant. Also the hardship must be extreme and exceptional. For example, if the spouse, child, or parent is suffering from a serious and debilitating illness (i.e. cancer, cerebral palsy, or down syndrome).

If an immigrant can satisfy all three requirements, he or she can get cancellation of removal and obtain a green card. Meeting one or two of the requirements, no matter how strong your case, is not sufficient.

If you’ve been arrested or received a notice of removal, contact us for help with your case.

Immigration News from ILW.COM
FAQs
  • Q: My employer wants to sponsor me to get a green card – can they?

    If you entered the United States without visa and are working here without legal documentation, your employer may be able to help you. But it’s important to understand that just because your employer wants to help doesn’t mean you will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including your prior history (and your family’s prior history) in the United States. So it’s good that your employer wants to help but the first step is to call us for an interview so we can understand more about your situation.

  • Q: How can I get a work permit?

    A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, you need a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get you a work permit. But you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit you have to make an application for legal status in this country on some other basis. So don’t believe any other lawyer or person who tells you it’s an easy thing to get a work permit. Call us for an interview and we can explain to you how the process and the immigration laws in the United States really work.

  • Q:  Can I apply for deferred action now?

    As a result of the injunction issued by the District Court in Texas, applications for the expanded DACA program and DAPA are currently on hold. The Department of Homeland Security is not currently accepting requests for the expansion of DACA, as originally planned. Until further notice, it has suspended the plan to accept requests for DAPA.

  • Q: Does the new executive order or court injunction change Deferred Action protection under existing DACA?

    The Court’s order does not affect the existing DACA. Individuals may continue to come forward and request initial grant of DACA or renewal of DACA pursuant to the guidelines established in 2012. This ruling only delays the start of DAPA and the expansion of DACA.

  • Q:  Who can I contact for more help or information?

    It’s important that you speak with a qualified attorney who can explain all the options and issues relating to your immigration status.  Do not take advice about your immigration case from a notary public or an immigration consultant.  The U.S. immigration laws and rules are very complicated and many people take advantage of undocumented immigrants, making promises and charging money without providing honest advice.  Contact only a qualified immigration lawyer for legal advice about your case. If you encounter 'notarios' who offer legal advice without a license, report it.

  • Q; What should I do now?

    You can begin preparing now! Even though DHS is not currently accepting applications under DAPA or the expanded DACA programs, individuals who are potentially eligible for Deferred Action status should begin preparing their applications now. It is very likely that the Texas decision will be overturned and there will probably be a rush of applicants when that happens. Individuals should be ready with their applications and start now by gathering the necessary documentation and seeking good counsel to give themselves the best chance for success and to avoid potential problems.

  • Q: I haven’t seen my mother since I came to the U.S. 10 years ago. Can I apply for a visa so she can join me here?

    If you are a U.S. citizen or have a Green Card, then yes, you can apply for a visa for your family members. But the process can take a long of time, depending on your own status. If you’re a U.S. citizen, it might take 8 months to a year to process the application. The waiting time will be much longer if you’re a Green Card holder. Generally, the sooner you start the process the better. So contact one of our attorneys today to get started. Or click here if you want to learn more about the different types of visas that are available for family members.

  • Q: My grandma is sick back home – can I go visit her?

    Whether you can travel abroad depends on your immigration status. If you have been granted DACA or if you have a Green Card in hand – you still must ask for advanced permission in order to leave the country. This is called advanced parole. Obtaining advance parole is relatively inexpensive. But it is not without risk, because there is really no way to guarantee that you will be able to return. Your return is ultimately within the discretion of the authorities at the point of your reentry to the U.S.

  • Q: Can our company sponsor an employee to get a green card?

    If one of your employees entered the United States without visa and is working here without legal documentation, you may be able to help this person obtain legal immigration status. This doesn’t necessarily mean they will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including a person’s prior history (and their family’s prior history) in the United States. It’s definitely helpful to their case if you, as their employer, are willing to help, but the first step is to have the employee call us for an interview so we can understand more about their situation.   Or click here to read more information about green cards.

  • Q: What is a work permit?

    A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, an employee needs a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get undocumented immigrants work permit. But you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit a person must make an application for legal status in this country on some other basis. So don’t let your employees get gulled into believing that it’s easy to get a work permit by some lawyer or hustler on the street corner. Call us for an interview and so we can explain to your employees how the process and the immigration laws in the United States really work.

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