Immigration Consequences of Criminal Convictions
Deferred adjudication is a form of plea deal available in various jurisdictions, where a defendant pleads "guilty" or "No Contest" to criminal charges in exchange for meeting certain requirements laid out by the court within an allotted period of time also ordered by the court.
With a deferred adjudication probation, you are not "technically" convicted. This is because the judge does not specifically find that you are guilty of the offense. Rather, the judge merely finds that there is sufficient evidence upon which a finding of guilt could be made. So, after being placed on a deferred adjudication, even though you entered a plea of "guilty," you could truthfully say that you had not been convicted. Usually upon successful completion of the probation, you can withdraw your guilty plea and the charge is dropped. However, if you are an alien, there is a complete different consequences of such a plea.
Both the Board and the federal courts have held that a deferred adjudication is a conviction for immigration purposes where it involves an admission of guilt and limitations on the defendant’s liberty. A court’s grant of probation before judgment generally constitutes a conviction under the INA.
601A Provisional Unlawful Presence Waiver Requirement
To be eligible for a provisional unlawful presence waiver you must fulfill ALL of the following conditions:
Be 17 years of age or older.
Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child (unmarried and under 21), or parent of a U.S. citizen.
Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee (IV Fee).
Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.
601A Provisional Unlawful Presence Waivers
Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States and before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.
Legal Requirements of the § 212(d)(3) Waiver
§ 212(d)(3) non-immigrant waivers (also referred to as 212(d)(3)(A) waivers) are adjudicated by the Admissibility Review Office located in Washington D.C. The three criteria for granting a waiver under § 212(d)(3) are set forth in the Matter of Hranka:
1. The risks of harm in admitting the applicant
2. The seriousness of the acts that caused the inadmissibility
3. The importance of the applicant’s reason for seeking entry.
Both Dept. of State regulations and the Foreign Affairs Manual provide that:
“while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.” 22 CFR 40.301; 9 Foreign Affairs Manual 40.301 N3
212(d)(3) General Waiver for Non-Immigrants
Non-immigrants are foreign nationals seeking to enter the U.S. on a temporary basis. They differ from immigrants who intend to live in the U.S. on a permanent basis.Section § 212(d)(3) of the Immigration and Nationality Act waives virtually all grounds of inadmissibility for non-immigrants including health, criminal, prostitution, smuggling, and unlawful presence. The only grounds of inadmissibility not waived are certain security-related grounds related to espionage, sabotage, genocide, and Nazi Persecution.
212(h) Waiver for Criminal Convictions
Section 212(h) of the Immigration and Nationality Act provides a discretionary waiver for the following criminal grounds of inadmissibility:
• Crimes involving moral turpitude (subparagraph 212(a)(2)(A)(I))
• Multiple criminal convictions (212(a)(2)(B))
• Prostitution and commercial vice (212(a)(2)(D))
• Certain aliens who have asserted immunity from prosecution (212(a)(2)(E))
• An offense of simple possession of 30 grams or less of marijuana (212(a)(2)(A)(i)(II))
Deferred Action for Parental Accountability (DAPA)
On November 20, 2014, President Barack Obama announced that the U.S. Department of Homeland Security (DHS) would not deport certain undocumented parents of U.S. citizens and parents of lawful permanent residents (LPRs). Under a directive from the secretary of DHS, these parents and youth may be granted a type of temporary permission to stay in the U.S. called “deferred action.”
Currently, U.S. Citizenship and Immigration Services (USCIS) is not accepting applications for the expanded DACA program for youth or the Deferred Action for Parental Accountability (DAPA) program.
To be eligible for deferred action under DAPA, you must:
• Be the parent of a U.S. citizen or lawful permanent resident.
• Have continuously lived in the U.S. since January 1, 2010.
• Have been present in the U.S. on November 20, 2014. It’s also likely that you will need to be present in the U.S. every day from now until you apply for DAPA.
• Not have a lawful immigration status. To meet this requirement, (1) you must have entered the U.S. without papers, or, if you entered lawfully, your lawful immigration status must have expired; and (2) you must not have a lawful immigration status at the time you apply for DAPA.
• Have not been convicted of certain criminal offenses, including any felonies and some misdemeanors.
Eligibility for I-601A Waiver
• Is physically present in the United States; Is at least 17 years of age;
• Has an approved immigrant visa petition (I-130) classifying him or her as an immediate relative of a United States citizen;
• Is actively pursuing the immigrant visa process and has already paid the Department of State immigrant visa processing fee;
• Is not subject to any other grounds of inadmissibility other than unlawful presence; and
• Can demonstrate that a refusal of admission would cause extreme hardship to a United States citizen spouse or parent.
The E visas is especially useful for business owners, business owners, managers, and employee who need to remain in the United States for extended periods of time in order to oversee or work in an enterprise engaged in trade between the United States and a foreign state or that represents a major investment in the United States. Although an initial period of stay of two years is granted to person coming to the United State, this period can be extended almost indefinitely—as long as the alien affirms that he or she will leave the United States when the period of authorized stay, including unlimited extensions, ends.
Non-LPR Cancellation of Removal
If you are a foreign-born person who has been living in the U.S. without legal status for a long time, and you have been placed into removal (deportation) proceedings, you may be eligible for what’s called “Non-LPR Cancellation of Removal” and a green card. The conditions for this form of relief from deportation include that:
You have been living (“continuously physically present”) in the U.S. for at least ten years.
Your being removed (“deported”) from the U.S. would cause “exceptional and extremely unusual hardship” to your qualifying relative(s), who is (or are) U.S. citizens or lawful permanent residents (LPRs);
You can show that you have “good moral character”; and
You have not been convicted of certain crimes or violated certain laws.
The L-1 visa facilitates the temporary transfer of foreign worker in the managerial, executive or specialized knowledge category to the U.S. to continue employment with an office of the same employer, its parent branch, subsidiary or affiliate. L-1 visa is a temporary nonimmigrant visa that allows L-2 visa for spouse and minor unmarried children under 21 years of age. L-1 visa holder is known as intracompany transferee. Even though L-1 visa was initially made for large multinational companies to transfer their employees to the U.S., it provides small or start-up companies abroad to expand their business and services to the U.S. L-1 visa is not limited to specific countries that the U.S. may have some treaties with. Therefore, as long as all eligibility requirements are met, the aliens from any country are eligible.
Right to counsel
An alien in immigration proceedings may be represented by an attorney of his or her choosing, at no cost to the government. Unlike in criminal proceedings, the government is not obligated to provide legal counsel. The Immigration Court provides aliens with a list of attorneys who may be willing to represent aliens for little or no cost, and many of these attorneys handle cases on appeal as well. Bar associations and nonprofit agencies can also refer aliens to practicing attorneys.
J-1 Visa Waivers of the Foreign Residence Requirement
If the exchange alien is subject to the foreign residence requirement, a waiver of the requirement may be granted under one of the following five condition:
1) A “no objection” letter is issued by the alien’s government to the DOS, stating that the foreign government has “no objection” to the alien remaining in the United States (these waivers are unavailable to exchange visitors subject to §212(e) because they received graduate medical education or training in the United States);
2) The exchange visitor’s compliance with the foreign residence requirement would result in exceptional hardship to this or her U.S. citizen or permanent resident spouse or child.
3) The exchange visitor would be subject to persecution upon returning home;
4) An interested U.S. government agency (IGA) seeks a waiver on behalf of the exchange alien;
5) A state health department recommends a waiver for the J-1 physician (a so called Conrad Program waiver).
The J-1 visa category is used by foreign students, scholars, experts, medical interns and residents, “international visitors,” and industrial and business trainees to enter the United States as “exchange visitors,” in U.S. government approved Exchange-Visitor Programs, for the purpose of gaining experience, studying, or doing research in their respective fields. The permissible period of stay for exchange visitors varies depending on the exchange visitor category in which the visitor is admitted. A two-year foreign residence requirement is imposed on some categories of exchange aliens once their U.S. stay is completed. Any J-1 exchange visitor subject to the foreign residence requirement is ineligible for permanent residence or nonimmigrant visas in the H or L category until he or she spends two years—after completion of stay—in his or her home country. Some waivers of the requirement are available in special cases.
Basic Information about Service Center Processing
USCIS Service Centers were established in the 1980s to transfer examinations functions from district offices in order to concentrate application and petition processing in a few facilities under a legacy INS program labeled Direct Mail. Over the years the Direct Mail program had been expanded so that the vast majority of immigration applications and petitions were required to be filed at Service Centers. Immigration applications and petitions were required to be filed at Service Centers. Immigration examiners at the Service Centers are isolated from public contact so that they can concentrate on adjudication of petitions. The result is a faster “turnaround” on decisions, but also a lack of contact with the examiners and significant decrease in the ability to follow up on papers that seem to have gotten lost of off track. The four Service Centers still process the majority of immigration-related petitions and applications. They are located in Vermont, Taxes, Nebraska and California.
In 2001, the government opened an additional center (the National Benefits Center, formerly known as the Missouri Service Center) to handle only LIFE Act filings. i.e, application for K-3, K-4 and V nonimmigrant status, and applications benefits accorded to certain applicants for legalization under Immigration Reform and Control Act of 1986. Since 2001, more applications were added to the list of forms to be processed at the National Benefits Center.
Violence Against Women Act (VAWA)
1n 1994, Congress established special protections for alien spouses and children who had been battered by their U.S. citizen or permanent resident spouses or parents. The 1994 law allowed there battered spouses and children to apply for permanent residence on their own behalf based on their relationship to the abuser.
Eligibility Requirements for a Spouse
• Qualifying spousal relationship:
o You are married to a U.S. citizen or permanent resident abuser or
o your marriage to the abuser was terminated by death or a divorce (related to the abuse) within the 2 years prior to filing your petition, or
o your spouse lost or renounced citizenship or permanent resident status within the 2 years prior to filing your petition due to an incident of domestic violence, or
o you believed that you were legally married to your abusive U.S. citizen or permanent resident spouse but the marriage was not legitimate solely because of the bigamy of your abusive spouse.
• You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident spouse:
o You have been abused by your U.S. citizen or permanent resident spouse, or
o your child has been subjected to battery or extreme cruelty by your U.S. or permanent resident spouse.
• You entered into the marriage in good faith, not solely for immigration benefits.
• You have resided with your spouse.
• You are a person of good moral character.
Eligibility Requirements for a Child
• Qualifying parent/child relationship:
o You are the child of a U.S. citizen or permanent resident abuser, or
o you are the child of a U.S. citizen or permanent resident abuser who lost citizenship or lawful permanent resident status due to an incident of domestic violence.
• You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident parent.
• You have resided with your abusive parent.
• You are a person of good moral character; a child less than 14 years of age is presumed to be a person of good moral character.
Eligibility Requirements for a Parent
• Qualifying parent/son or daughter relationship:
o You are the parent of a U.S. citizen son or daughter who is at least 21 years of age when the self-petition is filed, or
o you are the parent of a U.S. citizen son or daughter who lost or renounced citizenship status related to an incident of domestic violence, or
o you are the parent of a U.S. citizen son or daughter who was at least 21 years of age and who died within 2 years prior to filing the self-petition.
• You have suffered battery or extreme cruelty by your U.S. citizen son or daughter.
• You have resided with the abusive son or daughter.
• You are a person of good moral character.
Legislation enacted in 2000 (the LIFE Act) created nonimmigrant categories for immediate relatives of U.S. citizens and permanent residents with pending permanent residence papers. Because the “immediate relatives” of U.S. citizens (spouses, minor children, parents) are not subject to an annual cap on entry as are all other family-sponsored immigrants, and immigrant visa is considered to be immediately available to these individuals. In reality, however, due to USCIS and consular processing delays, it may still take up to a year for these family members who are outside of the country to enter the U.S. Because they are presumed to be “intending immigrants.” They are not eligible to receive a nonimmigrant visa to visit their petitioning U.S. citizen relative during the pendency of the process. The LIFE Act addresses this problem by expanding the “K” visa category to include spouses (K-3), and any accompanying minor children (K-4), of U.S. citizens who are the beneficiaries of an immigrant petition and are awaiting approval of the petition outside the United States. Note that another provision in the LIFE Act created a V visa category for certain spouses and children of permanent residents with the pending permanent residence papers. V benefits applied only with regard to 2A petitions that were filed on or before December 21, 2000.
Naturalization of Permanent Residents
Permanent resident aliens may become naturalized U.S. citizens after meeting certain requirements set forth in the immigration laws. Permanent residents are not required to become citizens of the U.S.; they can live here forever as resident aliens if they prefer to do so. Many permanent residents do not seek U.S. citizenship because they would have to forfeit their citizenship in their native countries. Nevertheless, many permanent resident aliens want U.S. citizenship, and seek it at the first opportunity after they become eligible for citizenship.
In order to be eligible for citizenship in the United States, aliens must meet the following requirements as spelled out in the immigration laws:
1) The applicant must be admitted to permanent resident status;
2) The applicant must have a continuous residence in the United States for a minimum period (normally five years)
3) The applicant must be residing in the state of application for a minimum period of three months;
4) The applicant must have been physically present in the United States for a minimum period (at least half of the period of required continuous residence);
5) The applicant must have the ability to read, write and speak ordinary English;
6) The applicant must have knowledge of U.S. history and government;
7) The applicant must have good moral character;
8) The applicant must have continuous residence in the U.S. from the date of filing the naturalization application until actual admission to citizenship;
9) The applicant must have attained 18 years of age at the time of filing for naturalization (subject to certain exceptions);
10) The applicant must be attached to the principles of the U.S. Constitution.
Special requirements apply to particular groups of naturalization applicants and certain individuals are ineligible for naturalization.
Fiancé(e) Visas Overview
The K-Visa categories are for a U.S. citizen’s alien fiancé/fiancée and their accompanying children (K1 visas and K2 Visas)
If you petition for a fiancé(e) visa, you must show that:
You (the petitioner) are a U.S. citizen.
You intend to marry within 90 days of your fiancé(e) entering the United States.
You and your fiancé(e) are both free to marry and any previous marriages must have been legally terminated by divorce, death, or annulment.
You met each other, in person, at least once within 2 years of filing your petition. There are two exceptions that require a waiver:
1. If the requirement to meet would violate strict and long-established customs of your or your fiancé(e)’s foreign culture or social practice.
2. If you prove that the requirement to meet would result in extreme hardship to you.
After the Fiancé(e) Visa is Issued
Once issued, the fiancé(e) visa (or K-1 nonimmigrant visa) allows your fiancé(e) to enter the United States for 90 days so that your marriage ceremony can take place. Once you marry, your spouse may apply for permanent residence and remain in the United States while USCIS processes the application. For additional information, see the “Green Card” section.
Deferred Action for Childhood Arrivals (DACA)
Deferred Action is a form of prosecutorial discretion that provides a work permit and relief fromremoval for two years to certain eligible undocumented youth.
What are the benefits of Deferred Action for Childhood Arrivals (DACA)?
Protects the youth from being placed into removal proceedings and from being removed. Provides an employment authorization document that allows the youth to work.Can obtain a Social Security Number. DACA can be renewed after two years.In certain states, a DACA-recipient can apply for a state identification card and a driver’s license.
Who is eligible for DACA?
An undocumented youth that is currently living in the United States may be eligible for DACA. The youth can request DACA, even if they are currently in removal proceedings or have a final order of removal. If the youth is detained, he or she can also request DACA or ask to be released based on prima facie DACA eligibility.
Collateral Consequences of a Criminal Conviction for Noncitizens
As attorneys who defend clients charged with criminal offenses, we rightly focus heavily on the question at the top of almost every client’s mind: “How much time am I facing?” Much of our efforts are spent trying to ensure that our clients spend as little time away from their families and communities as possible. The direct consequences of a criminal conviction—jail or prison time, fines, or supervision—are incredibly important issues for our clients and deserve our staunch efforts to advocate on behalf of clients in plea negotiations and in the courtroom. However, if we take some time while the criminal case is pending to think about the collateral consequences of the conviction—those not directly related to sentencing—we can take some steps toward making our clients’ future home a little easier.
Recent changes in our nation’s immigration laws have significantly raised the stakes for a noncitizen convicted of a crime. When a criminal charge potentially presents immigration issues for a client, the waters become murky for the average practitioner. Due to the increased complexity brought about by changes in the immigration law in recent years, it is difficult to know how every aspect of the immigration law may affect a client unless one practices regularly in this area. Before representing a client in a criminal matter, a practitioner should be aware of the client’s status in the United States. If the client is not a U.S. citizen, the practitioner must determine whether the client will suffer some immigration consequences as a result of a criminal conviction because a conviction may affect the client’s present or future status in the United States. If your client is a U.S. citizen, your client’s immigration status in the United States will not be affected by a criminal conviction. However, a U.S. citizen client charged with a sexual offense against a minor could lose the right to file immigration petitions on behalf of certain family members. Under 8 USC 1154(a)(1), U.S. citizens and legal permanent residents (LPRs) convicted of certain sexual offenses against a minor (as defined by 42 USC 16911(7)) can be barred from petitioning for immigration benefits for family members. In addition, making a false claim of having U.S. citizenship can bar one from receiving future immigration benefits; therefore, it is important to confirm that your client is truly a U.S. citizen before placing such evidence on the record.