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There are two different categories of people who are in the United States without authorization.  First, there are people who were lawfully “admitted or paroled” and then overstayed their visa or otherwise violated the terms of the admission.  Second, there are people who entered the United States without authorization or inspection.  Different laws apply to each of these categories of individuals.  How a person entered the United States can have a drastic effect on whether they are eligible to get a green card inside the United States or whether they will have to wait outside the United States for many years before obtaining a greencard.


What if I entered the United States with a visa, but overstayed and now I have a United States citizen spouse who wants to apply for me?


According to the Department of Homeland Security’s 2018 Report, there were 666,582 overstays in the year 2018.  An overstay is a person that was granted authorization to enter and stay in the United States for a temporary period of time and then did not leave the United States within that authorized period.  This can be overstaying on the visa waiver program, a visitor visa, student visa, or any other temporary visa.  A person who overstays their visa is deportable.  However, that doesn’t necessarily mean that person will be deported.   The government forgives the overstay in many situations and will allow the person to obtain a greencard within the United States if they are otherwise eligible.  For example, under the current policies, USCIS (United States Citizenship and Immigration Services) will, within their discretion, allow a person who has overstayed their visa to obtain a greencard based on marriage to a United States citizen.  This forgiveness usually only extends to family based applications and not employment based.  There are also many considerations that can affect eligibility, so it is important for any person with any immigration violation, like an overstay status, to consult with an immigration attorney before filing any immigration paperwork.  USCIS can issue a Notice to Appear and place a person in removal (deportation) proceedings, so consult with an immigration attorney to understand the risks.

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In Florida, driving is considered by our courts as a privilege and not a right.  This is important because it means that the State of Florida has more authority to grant, deny, suspend, or revoke driver’s licenses than it would if you had a constitutional or statutory right to drive.  But people need to drive.  It is hard to exist and prosper without having the ability to drive from place to place.  Every State creates its own rules on who can drive and when. So, what are Florida’s rules when it comes to non-citizens?


The State of Florida and Driver’s Licenses for Non-Citizens


Some states are more immigrant friendly than others when it comes to issuing driver’s licenses.  Immigration is controlled by federal law.  Driver’s licenses is controlled by state law.  Each state can develop their own laws and rules on who can drive within their state.  Some states aren’t really concerned about a person’s immigration status.  The State of Florida requires its residents to submit evidence of their lawful status, or in some cases, evidence of their efforts to obtain lawful status, in order to obtain a driver’s license.

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Did you know that the mere admission of past criminal conduct can lead the government to deny your admission into the United States.  It can lead to a denial of a green card.  It can lead to deportation.  Many unsuspecting people believe that admitting to minor criminal conduct that happened years in the past will be forgiven by immigration officials. That cannot be further from the truth.


Why would they deny my admission or deport me for simply admitting to past criminal conduct?


§212(a)(2)(A)(i) of the Immigration Act states that, “any alien…who admits having committed, or who admits committing acts which constitute the essential elements of … a crime involving moral turpitude…or an attempt or conspiracy to commit such a crime…or a violation of any law…relating to a controlled substance…is inadmissible.”  This means that no conviction is required.  Therefore, if you admit to committing certain crimes, you are inadmissible and  you must seek a waiver to be admitted into the United States, or to be able to get a greencard, or to be able to stay in the U.S.

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In 2018, the United States Supreme Court opened up an avenue of relief from deportation for many non-U.S. Citizens in the landmark decision of Perreira v. Sessions, 138 S.Ct. 2105 (2018). That avenue of relief has been closed down by the Board of Immigration Appeals (BIA) in a newly released decision of Matter of Mendoza-Hernandez, Matter of Capula-Cortes, 27 I&N Dec. 520 (BIA 2019).  Here’s how the new decision will affect people in deportation proceedings:


What did the U.S. Supreme Court say in Perreira v. Sessions?


Many people believe that when a non-citizen is in the United States without lawful status, they are automatically deported.  However, there are many forms of relief that can help a person stay in the country.  Some of those forms of relief require that the person has been inside the United States for a certain amount of time.  For example, a person who does not have a greencard and has overstayed their visa or entered without authorization has to have been in the United States for 10 years to ask for “Cancellation of Removal.”  If the government files a Notice to Appear with the Court within that 10 year period, the person is not eligible to seek “Cancellation of Removal.”

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There are countless blossoming romances happening right now all around the world.  Many of those relationships involve couples who have large age differences, religious differences, cultural differences, and more.  Often, U.S. citizens fall in love with and marry people from other countries.  The process of obtaining a greencard (officially known as a Lawful Permanent Resident card) for that spouse should be easy.  But it’s not.  Even if the marriage is clearly real, the non-citizen spouse can be denied a greencard if you do not submit sufficient evidence that the marriage is real.


What do I have to prove in order to get my non-citizen spouse a greencard?


The process is different depending on your circumstances (i.e. is your spouse in the country or out of country), but one thing is always required.  If you are filing a petition with USCIS (United States Citizenship and Immigration Services) to establish your relationship to your spouse, you will have to prove that the marriage is “bona fide.”  In other words, you have to prove that your marriage is real.  It was not entered into for the sole purpose of evading the immigration laws.  This doesn’t mean that a couple can’t decide to get married earlier than they normally would so they aren’t separated when the non-citizen has to leave the country.  It simply means that two people can’t get married solely so the non-citizen can stay in the U.S. when they do not intend to live as husband and wife.

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I have a conditional greencard and am separated or am getting divorced from my U.S. Citizen husband. What do I do?


I married a United States citizen and got a conditional greencard.  Now, it has been 2 years and I have to file to remove the conditions on the greencard to get my 10 year greencard.  My husband/wife and I are separated, divorced, or talking about separating or divorcing.  How will this affect my greencard?


I-751 PETITION TO REMOVE CONDITIONS

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Many immigration cases can take up to a year or more during what is called the normal processing time.  For example, the local Jacksonville USCIS office has a published processing time of 8 months to 15.5 months for a spouse of a United States Citizen to obtain a greencard.  If your case is within the normal processing time, then the only thing you can do is wait for the government to process your case.  You can check the normal processing times for each type of application or petition for each office or center here: https://egov.uscis.gov/processing-times/: But what if it has been much longer than the normal processing time?  We’re going to discuss some options that may be available to you.


What is the first thing I should do if my case is outside the normal processing time?


You can always enter your Receipt Number into the USCIS online case status system.

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There are two potential provisions of law that DHS (Department of Homeland Security) use to deport non – United States citizens for prostitution convictions.  The first is by claiming that it is a “crime involving moral turpitude.”  The second, which is much more severe, is that it is an “aggravated felony.”  The Board of Immigration Appeals recently decided whether a Wisconsin prostitution statute serves as the basis of an aggravated felony.


When is a prostitution conviction a “crime involving moral turpitude?”


Unfortunately, there is no defined list that shows which state statutes are considered crimes involving moral turpitude.  When a person is convicted of a crime, DHS can place that person in deportation proceedings and allege that the conviction is a crime involving moral turpitude.  It would then be up to the immigration judge to decide whether the conviction is a crime involving moral turpitude.  Moral turpitude has been explained to be conduct that is inherently dishonest, base, vile, or depraved and contrary to the accepted rules of morality and the duties owed between persons or to society in general.  If either party doesn’t like the immigration judge’s decision, they can appeal to the Board of Immigration Appeals and then to the Federal Circuit Court.  Those appellate decisions give us specific guidance on a few specific statutes and general guidance on other statutes.

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The term “adjustment of status” is an immigration legal term that refers to anyone who has been “admitted or paroled” into the United States who “adjusts” status to that of a lawful permanent resident.  In other words, if you are inside the United States, you would adjust your status to obtain a greencard.  If you were outside the United States, you would apply at a consult for an immigrant visa and then enter as a lawful permanent resident.   Adjustment of status is different than a “change of status,” where you would change status from one temporary visa, for example an F visa (student visa) to another temporary visa, for example, and H1B visa (employment visa).  Adjustment of status is the fist step towards becoming  a United States Citizen.


Who can adjust status and obtain a green card?


There are several ways to adjust status in the United States.  The most common ways are through marriage to a United States citizen or through asylum.  However, victims of crime and those with certain employment opportunities or investment opportunities may also be able to adjust status.

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Is it better to imprison 9 innocent people and 1 guilty person or to free 9 guilty people and imprison 1 innocent person?


On December 11th, 2017, Akayed Ullah, a Bangladeshi immigrant who became a lawful permanent resident, strapped a pipe bomb to himself and attempted to conduct a terrorist attack in New York City.  Fortunately, the device detonated prematurely and he was the only person who sustained serious injury.  But many are calling for the cessation of constitutional rights in cases like Mr. Ullah’s.  Immigration attorneys and criminal defense attorneys understand the slippery slope of this argument and how dangerous it really would be to pick and choose who the constitution applies to and who it doesn’t apply to on U.S. soil.


What’s the big deal.  Why should “terrorists” be afforded constitutional rights like the right to remain silent and the right to an attorney?