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Do You Qualify for an Immigration Waiver?

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Foreign citizens seeking entry or permanent residency in the U.S. who have been declared inadmissible by U.S. Citizenship and Immigration Services may obtain immigration waivers if they meet the necessary eligibility requirements. The Immigration and Nationality Act sets forth a number of grounds that preclude people from entering or staying in the U.S. The grounds of inadmissibility may fall under a number of general categories, including criminal activity, fraud and misrepresentation, and unlawful presence. However, qualifying applicants may be granted waivers providing forgiveness for their inadmissibility factors and allowing them to continue their pursuit of obtaining U.S. visas or lawful permanent residency.

Waiver of Immigration Misrepresentation

Those deemed inadmissible for entry to the U.S. based on having secured immigration benefits fraudulently or by misrepresenting themselves may pursue waivers of immigration misrepresentation. If found inadmissible based on misrepresentation or fraud, foreign citizens may qualify for an immigration waiver if they have a U.S. citizen or lawful permanent fiancé, spouse, child, or parent. They must prove that their citizens or residents will experience extreme hardships should they be denied lawful immigration status, and there must be a waiver available for the specific transgression that caused their inadmissibility.

Provisional Waiver of Unlawful Presence

Applicants seeking provisional waivers of unlawful presence must meet all the specified conditions. Foreign citizens who have overstayed previous periods of admission can be declared inadmissible on the basis of unlawful presence. According to USCIS, to qualify for an unlawful presence waiver, applicants must be:

  • At least 17-years-old
  • Physically present in the U.S. to file the application and provide biometrics
  • Under the impression, their inadmissibility is based on an overstay of over 180 days but less than one year or one year or more during one stay
  • Able to demonstrate the hardship that a refusal of their application would cause their U.S. citizens or permanent residents

Additionally, applicants for unlawful presence waivers must have immigrant visa cases pending based on specific circumstances.

Waivers of Inadmissibility Based on Criminal Grounds

Applicants of criminal offenses other than those of moral turpitude may qualify for waivers on the grounds of criminal inadmissibility. There must, however, be a waiver available for their specific offense. Additionally, applicants must have an immediate family member who will experience hardships due to their denied entrance or at least 15 years must have passed between when they committed the crime for which they are inadmissible and when they applied for immigration status.

If You’re a Foreign National Facing Criminal Charges, Read This

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Foreign nationals in Illinois may face deportation and removal proceedings if they are convicted of a crime even if they receive a deferred judgment through a plea bargain with the prosecutor. Since a deferred judgment requires defendants to plead guilty and then to comply with the terms of their deferred judgment in exchange for having their guilty pleas withdrawn and the charges dismissed at the end of the time period, the immigration court may still consider it to be a conviction for immigration purposes. Convictions for aggravated felonies will result in an automatic deportation and removal proceeding, and certain misdemeanors and non-violent felonies will also result in deportation and removal proceedings. People should talk to their criminal defense attorneys and their Chicago immigration lawyers before they agree to enter into a plea agreement with the prosecutors who are handling their criminal cases.

What Is a Conviction for Immigration Purposes?

Under the immigration laws, certain criminal convictions will cause deportation and removal proceedings to be initiated. Some offenses such as aggravated felonies will automatically lead to deportation and removal after the person is convicted and has served his or her sentence. Other crimes that are classified as crimes of moral turpitude can also lead to deportation and removal proceedings as can convictions that carry jail sentences of one year or more. Misdemeanor convictions for things such as domestic violence can also prompt deportation and removal. 

If a defendant enters a plea agreement to admit his or her guilt in exchange for a deferred judgment, the admission of guilt will still count as a conviction for immigration purposes even though the guilty plea will ultimately be withdrawn and the charges will be dismissed upon the successful completion of the terms of the deferred judgment. This makes it important for people to talk to their criminal defense attorneys as well as their immigration lawyers so they understand the potential immigration consequences that they might face if they enter a guilty plea or accept a plea bargain for the criminal charges that they are facing. 

Immigration Consequences of Convictions

If people are convicted of crimes for immigration purposes, they may face deportation and removal even if they are lawful permanent residents who have lived in the U.S. for years. If they are here on a visa, they can also lose their visa and be deported back to their home countries and be barred from reentry.

Form I-9 Compliance: Here’s How to Be Prepared

business woman filing out a form

Employers must stay on top of worksite immigration compliance to avoid serious consequences for their companies, as well as their workers. A Form I-9 must be completed by employers and employees for anyone hired to work in the U.S. These forms verify the identities of workers and ensure they are authorized for employment in the U.S.

Continued I-9 Audits on the Horizon

Under the Trump administration, there has been a significant uptick in worksite investigations; a trend that is expected to continue throughout 2019. U.S. Immigration and Customs Enforcement reports that in a two-phased operation occurring between the 29th of January and 30th of March and from the 16th of July to the 20th of July in 2018, ICE served audit notices to 5,278 businesses across the U.S. ICE can audit employers’ records at any time to evaluate their compliance. Violations could result in criminal or civil penalties, including fines.

Ensure Accuracy and Thoroughness of I-9 Forms

Accuracy is essential for I-9 forms as ICE audits evaluate their correctness. New hires, or a preparer or translator on their behalf, complete the first section of Form I-9; providing their names, addresses, and birthdates, and indicating their citizenship or residency status. Employers should make certain all the information is provided in this section, including the maiden names of any married workers, and that employees have signed and dated the document. The second section of I-9 forms is completed by employers and should include workers’ employment authorization forms, information about the company, and employees’ hire or start-of-employment dates.

Maintain Valid Documentation

To ensure their compliance with worksite immigration policies, employers must maintain workers’ I-9 forms. Upon getting hired, employees must provide their employers with documentation establishing their identity and authorization to work. They may provide one document from List A of the lists of acceptable documents or one selection from List B and another from List C.

When conducting an audit, ICE will ask to see the I-9 forms. It may be helpful for employers to store all their worksite immigration records together, instead of in workers’ individual personnel files, so they are easily accessible. They should also remove records as they are no longer needed. Employers need only keep the records of former workers for one year after their separation dates or three years from their hire dates.

When an ICE Agent Knocks on Your Door in Chicago

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Although Trump’s threats of a mass roundup of undocumented immigrants have failed to materialize, advocacy groups are urging people who may be targeted by ICE to be prepared in case an immigration agent knocks on their door. Trump originally threatened that ICE would conduct mass raids and arrests of undocumented immigrants in June, but he agreed to postpone the action for a couple of weeks to allow Congress more time to reach an agreement on immigration reform. He subsequently announced that the raids would occur in early July, but the date came and went without mass arrests. The threats prompted cities across the U.S., including Chicago, to post emergency numbers and to engage in educational campaigns so immigrants would know their rights.

What to Do if ICE Arrives

Undocumented immigrants should know their rights if ICE agents show up at their homes. People should not open their doors and should instead ask if the agents have a warrant from inside of their homes. If the agents say they do, the immigrants should ask them to slip it under the door instead of opening it. A warrant should have the immigrant’s name and address and should have a judge’s signature. A removal order is not the same as an arrest warrant and should not prompt a person to open the door. People also are not required to answer any questions they are asked. If agents have arrest warrants, only the people who are named in them should step outside. If they have a search warrant, the people will have to allow them to search their homes.

If ICE agents try to force their way inside of a home, people should announce loudly that they do not consent to the entry. They should then ask for a Chicago immigration lawyer. People who are arrested should exercise their rights to remain silent. They should not sign anything or provide the agents with their identification. They also should not agree to be fingerprinted.

If ICE agents approach someone in public, the person should ask if he or she is under arrest. If an arrest is not occurring, the person can leave. A person who is arrested should ask for an attorney and has the right to request bail. Finally, people should document the raid by taking pictures or video. It is possible to fight against removal proceedings.

Trump’s Merit-Based Immigration Proposal

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Trump’s merit-based immigration plan would favor highly-skilled workers over people with family ties to the United States. However, the program would end work permits for spouses of highly skilled workers. It is unlikely that the workers would choose to live and work in the U.S. if they could not bring their spouses and children. The proposal has gained little traction and is facing opposition from both Republicans and Democrats in Congress.

What Trump’s Proposal Would Do

The Trump Administration’s latest immigration proposal would end family-based immigration visas for the parents, adult children, and siblings of U.S. citizens. It would also end family-based immigration for the spouses and children of lawful permanent residents. The proposal would eliminate the diversity lottery and would substantially reduce the number of visas that are available to refugees each year. The total number of visas would remain unchanged at 1.1 million per year. By removing these other visa programs, the U.S. would add more visas for highly-skilled workers. However, the spouses of the highly skilled workers would no longer be eligible for work visas, making it unlikely that many of these workers would choose to come to the U.S. under the H-1B visa program.

If Trump’s proposal passed, it would change the way people are able to immigrate to the U.S. While the Trump Administration touts the proposal as attracting more highly educated and skilled workers to the U.S., the proposal would be likelier to harm technology companies and other industries that rely on highly skilled foreign workers to fill their open positions. Highly skilled foreign workers can choose to go to other countries that have more generous visa programs and that allow their spouses to live and work in their countries. For example, more highly skilled workers are now choosing to go to Canada instead of the U.S. because there are fewer restrictions there.

The proposed plan would also do nothing to help Dreamers and does not mention the DACA program.

The proposal met with opposition from both Republicans and Democrats. While it is unlikely to pass, it demonstrates the direction that the administration would like to go in terms of immigration reform.