Consular Processing

2021-03-10 in Helpful Tips

Over the last 5 years, since 2012, we have processed over 100 consular visa cases on behalf our clients. Preparing the applications yourself or hiring less experienced lawyers can be too risky. In many instances, a simple mistake can be misinterpreted by the government as a fabrication resulting in either a “request for evidence” or a denial of the case entirely. We know the process well and can use our experience and knowledge to assist you in preparing your case to ensure that it gets done right the first time without any delays.

“Provisional” Waivers are still available. The “provisional” waivers are available to those who entered the U.S. illegally and who also have a U.S. citizen spouse who can sponsor them. You cannot, however, have any criminal convictions or immigration violations in your background; persons with those can still get a visa, but they would be subject to conventional waiver processing. A “provisional” waiver, like conventional waiver processing, requires that you leave the U.S. to get your immigrant visa, but you need only leave the U.S. for as little as a few days; conventional waiver processing, on the other hand, can take as long as one (1) year remaining outside the U.S. awaiting approval. In addition, with a “provisional” waiver, you are provided notice before you leave the U.S. whether or not your application was granted. If you qualify for the “provisional” waiver program, we encourage you to see us as soon as practicable.

Consular Processing: An Overview

2021-03-10 in Helpful Tips

If you entered the United States illegally and wish to obtain status, you may likely be required to obtain an Immigrant Visa from the consulate in your home country. Under current law, a person who has entered the United States illegally, or “without inspection,” will not be granted any benefit by United States Citizenship and Immigration Services (“USCIS”) and, therefore, would be required to return to his or her home country in order to obtain an immigrant visa. An exception is if a family member filed a petition or employer filed a labor certification prior to April 30, 2001. In this case – even if it is not the same person or employer – the person could qualify for the pre-2001 amnesty and would be able to adjust status with the payment of a $1,000 fine, despite having entered the United States without inspection.

Seeking consular processing requires filing an immigrant petition by your sponsoring relative and filing a waiver for your illegal presence. A “waiver” is your request for USCIS to forgive you for entering the United States illegally and remaining here illegally. It requires that your sponsoring relative demonstrate “extreme hardship” to him or her resulting from your inability to return to the United States with an immigrant visa. As can be seen, returning to your home country carries with it the risk that USCIS would not find that there is enough hardship entitling you to a waiver, resulting in having to remain behind. Successive applications are permitted and, therefore, if the initial application is denied, chances increase with a subsequent application.

Frequently Asked Questions

2021-03-10 in Frequently Asked Questions

Do you offer free consultations?

We are so confident in our ability and the reasonableness of our fees that we believe that, if you meet us, you will want to hire us.  Therefore, we do not charge a consultation fee for deportation cases.  [/vc_column_text]

What are your fees?

Our fees are either flat fee or hourly.  We cannot calculate our fees without first being familiar with what work is required on your case.  Therefore, the fees vary from case to case depending upon the circumstances.  As in all professional relationships, we need to first understand your circumstances before providing a quote.  We render excellent service for our fees and we keep them competitive with other firms in the city.

What if my case is not in Illinois?

The Chicago Immigration Court covers Illinois, Wisconsin, Indiana, and sometimes Kentucky.  If your case is outside of these states, Chicago Immigration Advocates attorneys can travel out-of-state  We have represented clients in Immigration Courts in Texas, New York, Louisiana, and California.  Additional fees and travel expenses, however, will apply if our appearance is required in those courts.

All Immigration Courts permit an attorney to represent a client so long as he or she is licensed in only one state, e.g., Illinois.

If you have a prior order of removal and wish to file a Motion to Reopen, they do not require a personal appearances in court, therefore, additional charges would not apply at least until the Immigration Court were to reopen the case.

In most deportation cases only one personal appearance – at the final or “individual” hearing – is required since most Immigration Courts, with some exceptions, permit attorneys to appear by telephone for status hearings.  Therefore the additional expense of having us handle your case could be reasonable.  Contact us today if you would like us to represent you in a court other than the Chicago Immigration Court.

My family member was just recently arrested, what should I do?

If your family member was recently arrested, you need tell your immigration lawyer who is detaining him or her and what criminal charges he or she is facing, if any. In many instances, our clients are detained by a local police agency or sheriff and have not yet been transferred into the custody of USICE. USICE usually places a “detainer” on a non-citizen, giving USICE 48 hours to arrest the non-citizen and bring him or her to face deportation charges. You should call us and obtain our advice on what we can do to stop the deportation.

My criminal defense lawyer is recommending that I plead guilty to Possession of a Controlled Substance?

If your lawyer believes you have no other options, then accepting a plea of guilty to this offense may have serious immigration consequences, or it may not. If you are a legal permanent resident for at least 7 years (some exceptions apply) without getting into any serious trouble during that 7 years, you are generally going to eligible to ask for forgiveness (otherwise known as a “waiver”). But if you were never a legal permanent resident or committed the possession offense or other serious crime within your first 7 years of entering the United States (legally, that is), you cannot plea guilty to this offense without barring you from any immigration benefit whatsoever for at least 20 years. Therefore you must be careful and I recommend that you contact us or another reputable immigration attorney for advice.

Did Your Attorney Fail to Represent You Properly?

If your family member was recently arrested, you need tell your immigration lawyer who is detaining him or her and what criminal charges he or she is facing, if any. In many instances, our clients are detained by a local police agency or sheriff and have not yet been transferred into the custody of USICE. USICE usually places a “detainer” on a non-citizen, giving USICE 48 hours to arrest the non-citizen and bring him or her to face deportation charges. You should call us and obtain our advice on what we can do to stop the deportation.

We are routinely hired by clients whose former attorneys have failed either to raise a basis for relief in Immigration Court or to present available evidence to support a particular basis for relief. The cases generally include claims for Convention Against Torture and asylum claims, as well as failure to file for post-conviction relief.

Convention Against Torture Relief

A significant number of these types of cases involve someone who is eligible for Convention Against Torture relief on the basis that he or she will be tortured or killed upon their return to their home country. Inexperienced attorneys have been found to have failed to properly present adequate evidence to support the claim of torture. We have resources, such specific books, reports, and expert witnesses at our disposal which can provide persuasive evidence of the likelihood of torture.

Concerning Convention Against Torture relief, our firm, through our managing Attorney Carla I. Espinoza, litigated the pivotal case within the Seventh Circuit which provides greater protection to those who seek this type of relief, despite having serious criminal convictions such as narcotics trafficking. Our firm has also won a case at the Seventh Circuit where the Court found that the two previous attorneys representing the non-citizen in an asylum case committed such serious errors that reversal was necessary.

Criminal Post-Conviction Petitions

Many inexperienced attorneys will overlook the viability of post-conviction relief for problematic criminal convictions. Moreover, they are not experienced in filing post-conviction petitions in the local courts and, consequently, they will overlook this as an available option. We have considerable experience in vacating criminal convictions for our clients.

Free Consultations: 1st Saturday of each month

2021-03-10 in Helpful Tips

From 10:00 a.m. to 2:00 p.m. on the first Saturday of each month, holidays excepted, our team of attorneys will make themselves available in private consultations to answer any immigration questions free of charge. People are reminded to bring all immigration related documents as well as all documents relating to any criminal matters. We will render an opinion on the options on the case as well as cost for our firm to handle the case.

Persons will be seen on a “first come, first served” basis. In the event you do not wish to wait or cannot attend on a Saturday you may set up a paid consultation during the week. We do not charge a consultation fee for a pending Immigration Court cases in which you have not yet hired an attorney and you have a pending court date. In other cases we charge a reasonable fee for a consultation and will take the time to understand the case so that we can present the available options.

Our attorneys concentrate in immigration and criminal related matters. We usually can find an option where other less experienced attorneys cannot.

Immigrant Visa: Legal Permanent Resident

2021-03-10 in Helpful Tips

A Legal Permanent Resident (“LPR”), also known as a “Green Card” holder, is the status conferred on someone who wishes to make the United States their permanent home and has someone to sponsor him or her, does not have serious criminal convictions, nor has any serious immigration violations. It is a necessary first step in the process of becoming a U.S. citizen. We have processed thousands of these types of applications for our clients.

The usual way to obtain residency, not including business-related visas, is for a family member to sponsor you. The regulations divide family members into groups, some with quotas and others without. Those without quotas are called “immediate” family members, who are being petitioned by a U.S. citizen only: 1) spouses; 2) children (over the age of 21) on behalf of parents; and 3) parents on behalf of children, under the age of 21, who are unmarried. Otherwise, there are quotas, and because of those quotas, there are waiting times for the following categories: 1) unmarried sons and daughters (over the age of 21) of U.S. citizens; 2) spouses and children of permanent residents; 3) unmarried sons and daughters of permanent residents; 4) married sons and daughters of U.S. citizens; 5) brothers and sisters of U.S. citizens.

Unless you fit into one of these categories, you will not qualify for a family based visa. With respect to those who may have entered the U.S. illegally, you still have the option to gain permanent residency. You would be required to leave the U.S., get a visa at your home consulate, and then return on the visa (unless you qualify for the 2001 amnesty). This process is called “consular processing.” There are waivers available for those who can demonstrate hardship to their spouses (or parents) who are residents or citizens.

Citizenship

2021-03-10 in Helpful Tips

Naturalization

We have assisted hundreds of clients to obtain Naturalization. You may consider doing it on your own but, in some instances, it makes sense to hire a lawyer if you wish to make the process easier for yourself or if you have some issues surrounding an arrest or left the United States longer than you should have, i.e., over 6 months. It is also the case that simple mistakes on the forms can cause delays.

The main issues to be aware of in relation to applying for naturalization are: (1) arrests for any criminal matter; (2) if you left the United States for longer than 6 months; (3) paying federal income tax; (4) paying child-support; and (5) registering for selective service.

US Naturalization Process: An Overview

2021-03-10 in Helpful Tips

US Citizenship

Citizenship is conferred on someone who has been a Legal Permanent Resident for five (5) years, been a person of “good moral character” and is over the age of 18. If a person is under the age of 18, they may become automatically naturalized if they have at least one U.S. citizen parent. In the event that you obtained your LPR status through marriage, however, you need to only wait the three (3) years. And, the two (2) years “conditional legal permanent residency” counts toward the three (3) years.

The citizenship application includes submitting form N-400 (Application for Naturalization), copy of your green card, passport style photos, the required fee, and in some cases, certain supporting documents as well. Anytime within one month of the submission of your application, you will be asked to be fingerprinted for purposes of a criminal background check. The first notice that USCIS will send is the receipt notice, indicating that they received ans accepted your application for filing. A few weeks (2-3) after this, you will receive a fingerprint appointment indicating the date and time for your fingerprints to be taken. Next notice will be the interview notice. All notices are entitled Form I-797C, Notice of Action. Interview times have varied from as little as 5 months to 2 years after the filing of the application, but USCIS provides waiting times on its website. See, www.uscis.gov.

When you appear at your interview, you will be given a U.S. Citizenship examination which tests your knowledge of the English language and the U.S. government and history. You must pass this test to be eligible. Certain applicants have different English and civics testing requirements based on their age and length of lawful permanent residence at the time of filing. If you are over 50 years of age and have lived in the United States as a lawful permanent resident for periods totaling at least 20 years, or if you are 55 years of age and have lived in the United States as a lawful permanent resident for periods totaling at least 15 years, you do not have to take the English test, but you do have to take the civics test in the language of your choice. If you are over 65 years of age and have lived in the United States as a lawful permanent resident for periods totaling at least 20 years, you do not have to take the English test, but you do have to take a simpler version of the civics test in the language of your choice.

If you are in the military and are interested in becoming a U.S. Citizen, please see the M-599, Naturalization Information for Military guide on the USCIS website.

Benefits

After your swearing-in ceremony, you are provided a certificate of citizenship which cannot be taken away, except where USCIS asserts that you obtained it by fraud. You hold the same rights as any other U.S. citizen. Therefore, you cannot lose your citizenship if you leave the United States for any extended period of time nor be deported if you commit a crime. And, lastly, you may begin to sponsor other relatives as Legal Permanent Residence, which is the basis for faster applications for any particular beneficiary.

Denial & Appeals

Usually, USCIS provides you written notice of your denial, states the reasons, and provides instructions on how and where to appeal. Your appeal is initially submitted to the USCIS itself. In the event that USCIS denies your appeal, you may also appeal to the Federal District Court in the circuit in which you live.

Relief in Immigration Court

2021-03-10 in Immigration Court

Winning your case in Immigration Court requires asking the Court for “relief.” Relief can take several forms but, in essence, you as the non-citizen must show the Court you have a way to remain in the United States. We have listed the usual forms of relief we have sought in the Immigration Courts for our clients.

This list is ordered from least complex to most complex:

1. Cancellation of Removal for Legal Permanent Residents

This form of relief is for those who are already legal permanent residents, but have received a criminal conviction. An Immigration Judge will permit the person to keep his or her green card but he or she must demonstrate the following:

(1) not convicted of an “aggravated felony” as defined by federal law;
(2) have been a legal permanent resident for at least 5 years; and
(3) have resided in the U.S. continuously for 7 years after having been admitted in any status.

2. Adjustment of Status in Proceedings

If you are the beneficiary of a Petition for Alien Relative, i.e., Form I-130, and you entered legally or someone filed an I-130 Petition for Alien Relative for you prior to April 30, 2001, you qualify to get your green card before an Immigration Judge. The same requirements which apply to those who would seek adjustment before United States Citizenship and Immigration Service (“USCIS”) apply in the Immigration Court. The most difficult thing for clients to establish usually is the legal entry. If there was not a legal entry then we must find out if you or one of your parents was the beneficiary of a I-130 petition filed on or before April 30, 2001 when you were a minor, i.e., under 21 years of age. If so, then you would only pay a fine of $1,000 to be able to adjust status and get legal permanent residency. Note, further, that for those who may have an “aggravated felony” you may seek waiver of that offense with an adjustment of status or re-adjustment of status depending upon your circumstances.

3. Consular Processing – Provisional Waiver (I-601A).

In instances where a non-citizen is married to a U.S. citizen and there was no legal entry, then we can ask the Immigration Court to close your case so that you can seek consular processing by means of the “provisional” waiver program initiated by President Obama. The most complicated aspect of this relief is demonstrating “extreme hardship” your U.S. citizen spouse and/or parents. Hardship to children does not count under the provisional waiver program. The non-citizen must also not have a criminal convictions for the provisional waiver program; a non-citizen can obtain a waiver for certain non-serious criminal convictions by way of a conventional waiver.

4. Cancellation of Removal for Non-Legal Permanent Residents.

This is a form of relief which permits a person who has never had any status in the U.S. to obtain status. It allows a person to remain in the U.S. with a grant of legal permanent residency (“green card”). It is the burden of the non-citizen to show the following:

(1) Resided in the U.S. for at least 10 years; if you left the U.S. you did not leave the U.S. during that 10 year period for more than 180 days and not more than 90 days at one time;
(2) you have not committed any serious crimes and you must be a person of “good moral character” which includes not having spent more than 180 days in jail;
(3) you have a U.S. citizen parent, spouse, or child(ren) who will suffer “exceptional and extremely unusual hardship” if you are ordered removed. The most difficult part of this form of relief is establishing “exceptional and extremely unusual hardship.”

5. U Visa

If you can demonstrate that you were a victim of a crime in which you cooperated with the police to arrest and/or prosecute the perpetrator you may be able to obtain this visa. This visa is obtainable either before the Immigration Court or USCIS and permits waivers for serious criminal offenses, including aggravated felonies.

6. VAWA (Violence Against Women Act)

If you can demonstrate that you suffered abuse at the hands of a United States citizen or legal permanent resident, you can request that you be granted legal permanent residency.

7. Asylum

This form of relief permits people to remain in the U.S. where they demonstrate that they will be persecuted on account of race, religion, gender, political opinion, or as a member of a particular social group. It requires that you file the application within one (1) year of entering the U.S. It also requires demonstrating that you cannot relocate within your home country. Cannot be convicted of a “particularly serious crime” which includes an “aggravated felony.”

8. Withholding of Removal / Withholding under Convention Against Torture

This form of relief is usually for our clients who have serious drug convictions or other “aggravated felonies” for whom this is the only way to remain in the U.S. legally. It requires, generally, that a person show that he or she will be persecuted or tortured by someone in the government, or associated with the government, such as a gang with police ties. See, CAT Claims for our success stories concerning our firm’s success in winning these types of cases. [in progress]

9. Post-Conviction Petition in Criminal Court.

This is not a basis of relief in Immigration Court, but so integral to our approach of winning in the Immigration Court it is necessary to mention it here. Some cases presented by our clients cannot be won without vacating the conviction. We will, in most instances, attempt to ascertain whether winning in Immigration Court is possible with a conviction record. But sometimes, due to the seriousness of the conviction, there is no way around the conviction other than to seek to vacate it through post-conviction relief. Pursuing post-conviction relief before the criminal court of conviction is very difficult and time-consuming, but if you prevail, you no longer need to be concerned about having a negative mark on your record both for immigration purposes as well as employment purposes. It usually requires demonstrating ineffective assistance of counsel before the trial court.

10. Other: Voluntary Departure and Return via Consular Processing

Some books and attorneys will refer to “voluntary departure” as a form of relief. For us, it is rarely a form of relief unless you fully intend to leave and can take advantage of returning to the U.S. legally via consular processing. Voluntary departure permits you to leave within a specified period of time, up to 120 days. It prevents you from getting a deportation order which is one less thing you need for which you would seek a waiver. Voluntary departure has several pitfalls. Not only will it convert into an order of deportation if you do not, in fact, leave and report personally to the U.S. consulate within the designated time period, but it bars relief for 10 years for legal permanent residency. For these reasons, we rarely recommend voluntary departure, unless there is good chance you can return by way of consular processing. Like the provisional waiver program mentioned above, consular processing is the processing of regular waivers, for which persons must submit evidence of “extreme hardship” and, in this instance, more evidence since there is likely more to waive. We recommend regular consular processing for clients who do not qualify for the provisional waiver because of certain criminal convictions or immigration violations.

In Re: Octavio (United States Department of State, 2011)

2021-03-09 in Cases Won

Legal challenge:

Our client was placed in deportation proceedings for failing to marry his wife within 90 days of entering the United States, pursuant to the terms of his K-1 visa. Our client was not eligible to adjust his status in the United States. Action Taken: In Immigration Court, Chicago Immigration Advocates convinced the judge to give our client voluntary departure so that he can return to the United States, this time on an immigrant visa based on marriage. Following our client’s departure, Chicago Immigration Advocates submitted applications for an immigrant visa and a waiver for his illegal presence in the United States based on the extreme hardship of his citizen wife and child. Result: US Citizenship and Naturalization.

In Re: Roman (United States Immigration Services, July 2011)

2021-03-09 in Cases Won

Legal challenge:

A conditional permanent resident submitted a request to remove the conditions of his residence with another attorney. The United States Immigration Services issued a notice of intent to deny the application and terminate his resident status on the grounds that his marriage was fraudulent. Action Taken: Chicago Immigration Advocates took over the case and filed a response to the intent to deny. The response refuted USCIS ‘allegations of marriage fraud and alleviated his concerns about the client’s marriage. Result: USCIS eliminated the conditions of our client’s residence and he is a permanent resident without conditions and plans to submit the application for naturalization.