What Happens If You Fail the Citizenship Test?

2022-09-20 in Blog

What Happens If You Fail the Citizenship Test?

When you take the US citizenship test, if you fail either the English or the civics portion of this test, you will be permitted to attempt to retake the tests once before US Citizenship & Immigration Services denies your application.

You will be rescheduled to retake the failed portions of the test within 90 days of the initial exam and interview date. If you fail again, USCIS will deny your application. You will be required to refile the Naturalization application again, including all forms and fees.

What's in This Guide

What Happens in the US Citizenship Test?
What Happens if You Fail the US Citizenship Test?
What are the Other Reasons for Failing the US Citizenship Test?
Can Citizenship Be Permanently Denied for Other Reasons?
Why You Need to Study for the US Citizenship Test

What Happens in the US Citizenship Test?

Naturalization interviews involve an assigned officer from USCIS who will ask you questions about your application and your background.

Additionally, you must take and pass a two-part naturalization test with these core components:

English Test
Civics Test

English Test

The first component of the naturalization test involves a test gauged to determine the extent of your knowledge of the English language.

This three-part English test includes a reading, writing, and speaking test:

Reading: You will need to read out one of three sentences correctly to the USCIS officer to demonstrate your ability to confidently read English.
Writing: You must write three sentences in English. At least one of these sentences must be correct.
Speaking: You will be tested on your ability to speak and to understand English.

Civics Test

The Civics Test is designed to establish whether you have a reasonable understanding of the history and government of the United States.

There are two principal versions of this test:

2008 test: The 2008 version of the Civics Test is an oral test. The USCIS officer will ask you up to 10 questions from an official list of 100 questions related to civics. To pass this test, you must answer at least six questions correctly. If you filed Form N-400 before December 1, 2020, you must take this version of the test. The same applies if you filed Form N-400 after March 1, 2021.
2020 test: Also an oral test, the 2020 version of the Civics Test involves an USCIS officer asking you 20 civics questions from a possible 128 questions on the official list. You must answer at least 12 questions correctly to pass this test. If you filed Form N-400 after December 1 or before March 1, 2021, you can choose whether to take the 2008 or 2020 test.

What Happens if You Fail the US Citizenship Test?

Failure of the citizenship test can occur during either portion of the test.

If you fail either the English Test or the Civics Test, you will be rescheduled to retake the failed component within 60 to 90 days of the initial exam and interview date.

Anyone who fails this test a second time will be ineligible to retake the test. Citizenship will be denied by the USCIS.

What Are the Other Reasons for Failing the US Citizenship Test?

If you fail either part of the US citizenship more than once, you will be denied citizenship. There are other reasons why the USCIS officer might decide to deny citizenship after administering the test.

During the initial application, you may have been asked to provide key documents relevant to your application. If so and if any documents are missing, you will receive Form N-14, a written request to provide the information. This form also outlines how you should correctly respond to that request. You have two options:

Respond in person at your follow-up interview.
Reply via mail within one month of receiving the request.

You should ask your assigned officer for clarification if you are not sure what information the request is demanding. You could also consult an experienced Chicago immigration lawyer.

Can Citizenship Be Permanently Denied for Other Reasons?

There are some other scenarios in which USCIS may have cause to permanently deny an application for US citizenship. If this happens, the person will be ineligible to reapply, and they will be unable to retake the citizenship test.

These are the primary reasons for an officer permanently denying an application:

Criminal history: If you have a criminal history involving murder or an aggravated felony, this is liable to cause USCIS to permanently deny your application. Officers will conduct a comprehensive background check for all applicants, meaning there is a strong chance that any prior convictions will be discovered, whether in the United States or abroad. If you have a history of arrests, you should seek guidance from an experienced immigration attorney to check whether you meet the requirements related to criminal background.
Failing to satisfy requirements for continuous residence or physical presence: Another common reason for applications for US citizenship being permanently denied is failing to meet requirements for either continuous residence or physical presence in the United States. Before applying for US citizenship, you must first prove you have lived in the US for five consecutive years, assuming you are not the qualified spouse of a US citizen. If you are the qualified spouse of a US citizen, you must reside in the US for three years. You cannot be absent from the US for more than 1 year if you are not married to a US citizen, and if you are, your total absence cannot be more than 18 months. Either of these situations can result in the application being denied.
Lying or making false statements: If you lie at any stage during your application or interview, the USCIS is likely to deny your application permanently. The same applies if you make any false statements.
Not paying taxes: If you are applying for US citizenship and you have failed to pay any necessary taxes, you are likely to have your application permanently denied. You may avoid this if you are able to prove that you are actively working to correct the problem and to pay any back taxes due.

Why You Need to Study for the US Citizenship Test

While the US citizenship is not especially demanding, it is nevertheless essential to properly prepare.

You can visit the USCIS website for resources related to the test. Materials provided include:

Pocket study guides
Flashcards
Videos
Interactive practice tests

By studying and practicing, you can familiarize yourself with the questions you might be asked and try to fully understand all relevant topics. The more you practice the test, the more confident you will be on the day. If you arrive on the day of the test without any preparation at all, you are likely to find the process intimidating and overwhelming. The more you study, the more relaxed you will feel when test day arrives.

If you fail the test, you should spend more time studying. The most important thing to remember is that failing the test for a second time means that your application for US citizenship will be denied. If this occurs, you will be issued with a denial of citizenship from the USCIS. You should engage the services of a specialist immigration lawyer if you want to appeal this decision.

Reach out to the friendly team today at Chicago Immigration Lawyers by calling (312) 704-8000. We will help you prepare the initial application, ensuring you have all the required documentation, we will prepare you for your interview by providing you resources to study for the civic portion of the test, and we will prepare you for the interview itself. We can also assist if your application was improperly denied by filing an appeal.

How Long Does a Fiancé Visa Take?

2022-09-20 in Blog, Family-Based Immigration

How Long Does a Fiancé Visa Take?

Processing times for a K-1 fiancé visa currently average six months. This timeline does not include the period from approval of your application to the date of the interview. This will differ significantly depending on the country you are applying from.

Today’s guide highlights the K-1 fiancé visa timeline so you can more confidently plan ahead.

What's in This Guide

Process for Obtaining a K-1 Fiancé Visa
How Long Will It Take to Obtain a K-1 Visa?
Adjustment of Status Via a Fiancé Visa Entry

Process for Obtaining a K-1 Fiancé Visa

A foreign fiancé of a US citizen may be eligible for a K-1 fiancé visa. This visa allows the foreign national to enter the United States in order to marry their partner (which must take place within 90 days of the time of entry).

When the fiancé arrives in the United States, they can marry the US citizen as planned. Subsequently, the foreign national can apply for an immigrant visa, also known as a green card, through adjustment of status – see below.

The process for obtaining a K-1 visa begins with the filing of Form I-129F by the US citizen with the USCIS (US Citizenship and Immigration Services). It is imperative to complete this form accurately to avoid delays in the visa issuing process.

Upon approval, your case will move to the National Visa Center for liaison with the US consulate or embassy in the foreign national’s country of residence.

Next, the fiancé will apply for the K-1 visa document itself with the consulate.

The final step of the process is the visa interview at the US consulate.

Assuming that the Petition for Alien Fiancé (Form I-129F) is properly filed, you will receive a notice confirming receipt of your petition from the USCIS. This is known as a Notice of Action (Form I-797C). This will typically arrive two or three weeks after filing.

The purpose of the I-129F Petition for Alien Relative is to:

Determine that the relationship between the US citizen and the foreign fiancé qualifies.
Pre-screen the fiancé for any criminal background.
Establish whether any other issues would conflict with the International Marriage Broker Regulation Act.

If the application is successful, the US citizen will receive another Notice of Action from USCIS, this time an Approval Notice (Form I-797).

Once the case transitions to the US Department of State’s NVC (National Visa Center), the applicant will be contacted for payment of consular fees and any additional processing requirements and forms – submitting Form DS-160 (Non-immigrant Visa Application), for instance.

The embassy will then review the case and subsequently mail a letter to the foreign fiancé. This correspondence will include details of the interview and medical exam required. The applicant then needs to submit some items immediately and prepare other items for the visa interview.

Anywhere from two to eight weeks after the applicant submits embassy documents, they will need to attend a K-1 fiancé visa interview. If any children are joining as K-2 visa holders, they must also attend the interview. Although the US citizen is encouraged to attend the interview, this is not mandatory.

The foreign fiancé should take documents to the interview that prove the relationship. They should also take proof of the medical exam. With proper preparation, the interview should go smoothly and the foreign national should get a decision when the interview concludes.

The visa is typically issued by the consulate or embassy within two weeks.

How Long Will It Take to Obtain a K-1 Visa?

The processing times for K-1 fiancé visas vary significantly. Many applicants find they can successfully enter the United States within six to nine months.

The process involves many steps and multiple agencies, including:

USCIS
National Visa Center
Department of State
Consulate in Foreign Country

Submitting a properly prepared I-129F petition is central to a swift application process. Unless this form is accurately completed and all supporting documents are included, you could experience substantial delays. If you are unsure about how to prepare this document, consult an experienced K-1 visa attorney.

Adjustment of Status Via a Fiancé Visa Entry

When a US citizen marries a foreign national, the marriage will not automatically lead to a green card granting legal immigration status in the US.

The foreign national needs to complete an adjustment of status application for permanent residence in the form of a green card.

This process involves completing multiple forms and following a series of steps. Expect the process to take several months. During the waiting period, applicants may get travel authorization and work authorization.

Here at Chicago Immigration Lawyers, we can help you or a foreign fiancé to apply for the K-1 visa. With the right representation and proper preparation, you can initiate a process which should take roughly six months before you are issued a K-1 fiancé visa.

Contact us now by calling (312) 704-8000 or online for a free case evaluation.

What to Expect at Your Spousal Visa Interview?

2022-09-20 in Blog, Family-Based Immigration

What to Expect at Your Spousal Visa Interview?

The process for a marriage green card is lengthy and involved. The final step is the spousal visa interview, so what should you expect?

The officer conducting the interview has one main goal: to determine whether the marriage is authentic or in “good faith”. To establish this, the interviewing officer will ask questions focusing on:

The history of your relationship.
Your daily activities as husband and wife.
The comingling of assets and income.
Any future plans you have as a couple.

Assuming the interviewing officer is convinced that your marriage is legitimate, they will approve your spouse for a spousal visa, also known as a green card.

What's in This Guide

Preparing for a Spousal Visa Interview
Questions Concerning the Spouse
Questions Concerning the Relationship
Questions Concerning the Applicant

Preparing for a Spousal Visa Interview

The application process for a marriage green card is lengthy and involved. The interview is the final obstacle between your spouse and an immigrant visa, but it can also be the most stressful and overwhelming element if you are not properly prepared.

Knowing what to expect at your spousal visa interview and making sure you assemble an organized file of documents can streamline the process considerably and reduce stress.

All green card interviews within the US are conducted by USCIS (U.S. Citizenship and Immigration Services).

All immigrant visa interviews outside the US are conducted by the US Department of State.

Most of the evidence mentioned below would likely have been provided already, but here are some easy actions to prepare yourself for a smoother and less stressful spousal visa interview:

Gather original documentation: Prepare the following original documents – birth certificates, passports, marriage certificates, any prior divorce documents, court records, and photos or other supporting evidence that illustrates the authenticity of your marriage. The officer will want to compare the originals to the copies you previously submitted. Note: you should not submit originals of these documents in your application.
Provide new documents: The following evidence should be updated prior to the interview; even though you may have already submitted them, you will want to get updated ones from the time of your application to the time of the interview, which can be up to a year – joint bank account statements, joint income tax returns, joint insurance documents, joint property documents, g., lease or deed, recent photos of you together. All of these documents help to prove the authenticity of your marriage.
Refresh your memory of key details: Sit down with your spouse or schedule a video call in the week leading up to the green card interview. Go over all key events and dates and refresh your memory of your relationship history.
Organize all documentation: Place all photos in an album and put them in chronological order to save fussing around on the day. Ensure that all documents are in place, too.

Questions Concerning the Spouse

On the day of the interview, you can expect the interviewing officer to ask the following questions concerning your spouse:

When is your spouse’s birthday?
Where was your spouse born?
Where do they currently live?
Where do their parents live?
If your spouse has any brothers or sisters, where do they live?
What is your spouse’s profession?
Where do they work?
Describe your spouse’s educational background.
What is the religious background of your spouse?
Is your spouse able to speak and understand English?
Do you speak your spouse’s native language?
What does your spouse do for fun?
What do you most like about your spouse?
Has your spouse ever been divorced?
If so, where did this occur and why did the marriage end in divorce?
If you have met your spouse’s parents or other family members, outline the circumstances of the meeting.
How and when did you first meet your spouse?
When did you first have the occasion to meet in person? Describe this occasion.
Before this interview, when did you last see you spouse?
How often do you communicate with your spouse?

Questions Concerning the Relationship

The following questions form the bulk of the green card interview. The interviewing officer will ask a series of questions about your relationship with your spouse. These are some common examples used in spousal visa interview in the United States:

Have you ever been on vacation with your spouse?
Who deals with the finances?
When is your anniversary?
Do you intend to have children?
Do you or your spouse have children from previous marriages?
Do you currently live together? If not, do you plan to live together?
What mutual hobbies do you enjoy?
Who cleans the house?
Who cooks?
Who does the laundry?
Who does the grocery shopping?
What cars do you each drive?
What do you do together in your free time?
What is your spouse’s favorite food?
Does your spouse take any medications?
What size is the bed in your house?
When is designated garbage day?
Does your spouse drink coffee?
How many rooms are there in your home?
How many bathrooms does your home have?
What is in your yard?
Which side of the bed do you sleep on and which side does your spouse sleep on?
Do you sleep at the same time?
How does your spouse unwind before bed?
Does your spouse prefer taking a bath or a shower?
Do you file your taxes jointly?
Which shows do you watch together on TV?
Does your spouse have any scars or tattoos?
Did you come to this interview together?
What did your spouse have for breakfast today?
Does your spouse play sports? If so, what is their favorite team?
Do you have curtains or blinds in your house?
Do you and your spouse share a closet?
Do you have a gas or electric grill?
Do you attend church with your spouse?

Questions Concerning the Applicant

Finally, in addition to some of the questions above, expect any of the following questions to be directed at the visa applicant (your spouse):

Have you previously visited the United States?
If so, what type of visa were you awarded?
Have you previously been refused a visa?
Have you previously overstayed in the U.S. on a visa?
Have you been arrested?
Does your spouse have any brothers or sisters?
When did you last see your spouse?
Have you met your spouse’s family?
How do you usually celebrate holidays?
Who is your spouse’s best friend?
Do you have any mutual friends?

If you need representation by an immigration lawyer, do not hesitate to contact our offices for assistance by phoning (312) 704-8000 or filling out our intake form here.

What Are Types Of US Immigrant Visas

2022-09-20 in Blog

What Are Types of US Immigrant Visas?

If you are planning a trip to the United States, you will discover that there is no universal visa for all travelers.

There are around 185 different types of US visas which are broadly categorized as follows:

Immigrant visas: An immigrant visa permits you to stay in the United States permanently. These visas entitle you to what is informally known as a Green Card and allow you to live and work in the US for as long as you wish.
Nonimmigrant visas: This type of visa allows you to stay in the United States temporarily but does not allow you to immigrate to the US

What's in This Guide

Do I Need to Apply for a US Visa?
Application Process for US Visas
Different Types of US Visas
How Do Nonimmigrant Visas and Immigrant Visas Differ?
FAQs

Who Needs to Apply for a US Visa?

Citizens of any of the forty countries in the VWP (Visa Waiver Program) are permitted to travel to the US for up to 90 days without requiring a visa. This applies to both tourist trips and business visits. Citizens of Canada and Bermuda enjoy these same visa-free privileges by applying for an ESTA (Electronic System for Travel Authorization). This document is obtainable from the CBP (US Customs and Borders Protection).

Travelers from all other countries must apply for a US visa in advance of travel.

Additionally, every traveler to the United States must have an e-passport containing a machine-readable zone and biometric information.

Application Process for US Visas

Regardless of the type of visa, the US visa application is straightforward and follows a similar procedure. The discussion below presumes that the beneficiary is eligible for the visa; many different factors determine whether someone is eligible, which will be discussed below. This discussion is meant to demonstrate the general process for those who are eligible.

That said, there are differences in the process according to the visa category and type, as well as differences relating to the country from which you are making the application.

What are the Different Types of US Visa?

For the purposes of today’s guide, we will focus primarily on immigrant visas. There are two broad categories of US immigrant visas:

Family sponsored and immediate relative immigrant visas
Employer sponsored immigrant visas

Beyond this, there are also diversity immigrant visas offered to countries with historically low rates of immigration to the US. Here are the specifics of each type of US immigrant visa:

Immediate relative immigrant visas

Any foreign national with an immediate relative who is a US citizen is potentially eligible for an immediate relative immigrant visa. An unlimited number of these visas can be issued each year.The definition of an immediate relative includes a spouse, an unmarried minor, or a parent. Relatives of US citizens can apply for one of the following immigrant visas:

Spouse of US citizen (IR-1)
Unmarried minor (aged under 21) of a US citizen (IR-2)
Orphan adopted by a US citizen abroad (IR-3)
Orphan who will be adopted by a US citizen in the United States (IR-4)
Parent of a US citizen where petitioner is over 21 years of age (IR-5)

To initiate the process of obtaining an immigrant visa for a beneficiary – a foreign relative – the petitioner (the US citizen) needs to file a Petition for Alien Relative (form I-130) with USCIS (US Citizenship and Immigration Services). The I-130 Petition is the first step and does not entitle the beneficiary to any status; it functions as the way USCIS can verify you are who you say you are, the petitioner is who he or she is, and that you are related in the way you have asserted.If the beneficiary is living in the United States, they will need to file an Application to Register Permanent Residence or Adjust Status (form I-485) in conjunction with the I-130 Petition. Subsequently, they would need to appear in person for collection of biometrics (i.e., fingerprints) and an interview before a USCIS officer. If the beneficiary is living outside the United States, they must wait for an approval of the I-130 and then file for an immigrant visa at the US consulate in their country of residence. Assuming the beneficiary is eligible for the visa and passes an interview and medical exam, the immigrant visa will be issued.

Family preference immigrant visas

It is also possible for more distant family members of US citizens to apply for a family preference visa. This category also allows some permanent residents to apply for their relatives. In this category there are wait times because of the quotas imposed, as will be seen below. The relationship between the relative and the US citizen or permanent resident will determine the visa category as follows:

Family first preference immigrant visa (F-1): Unmarried child (aged over 21) of US citizens and any accompanying minor children (23,400 visas issued annually).
Family second preference immigrant visa (F-2): Spouse, minor child, and unmarried child (aged over 21) of a lawful permanent US resident (114,200 visas issued annually).
Family third preference immigrant visa (F-3): Married children of US citizens, their spouses, and their minor children (23,400 visas issued annually).
Family fourth preference immigrant visa (F-4): Sibling of a US citizen, their spouse, and any minor children (65,000 visas issued annually).

Applying for this type of visa involves the same process as when applying for an immediate relative visa.

Diversity immigrant visas

The DIVP (Diversity Immigrant Visa Program) makes provision for foreign nationals residing in countries with traditionally low rates of immigration to the United States to apply for permanent residency. Each year, there is a limit of 50,000 diversity visas. Applicants will be selected randomly according to the allotted number of visas for that region or country. There are eligibility requirements in place. Selection through the DIVP is not a guarantee that the applicant will be issued with a US visa.

Employment-based immigrant visas

The USCIS allows for the issuing of roughly 140,000 employment-based immigrant visas each year. These visas are categorized as follows:

First preference employment-based visa (EB-1): Priority workers.
Second preference employment-based visa (EB-2): Professionals with exceptional abilities or advanced degrees.
Third preference employment-based visa (EB-3): Professionals, skilled workers, and unskilled workers.
Fourth preference employment-based visa (EB-4): Specific special immigrants.
Fifth preference employment-based visa (EB-5): Immigrant investors.

Each employment-based visa category has unique requirements that must be satisfied before the applicant is awarded permanent resident status.

How Do Nonimmigrant Visas and Immigrant Visas Differ?

With a non-immigrant visa, you will only be eligible to remain in the United States temporarily. You can find a list of all non-immigrant visa categories right here. Those who wish to legally work in the United States must first apply for a specific work visa. As outlined above, all these immigrant visas have different costs, requirements, application processes, and processing times. Contact an experienced immigration lawyer for clarification. Be prepared for a lengthy and involved process when applying for a work visa. The primary requirement is a firm job offer from an employer based in the US. If you are issued a work visa, it will only be valid for as long as you continue working for that specific employer. Those who are ineligible for the Visa Waiver Program who are looking to remain in the United States for up to 180 days can consider applying for a US visitor visa. This allows for longer stays for the purposes of tourism or restricted business activities. Immigrant visas, on the other hand, allow you to stay permanently in the United States without restrictions on employment. Reach out to Chicago Immigration Lawyers today by calling (312) 704-8000 or our contact form, and we will guide you through the visa process.

FAQs

If I obtain a US visa, does this guarantee entry into the country?

No, possessing a valid visa for the United States does not guarantee entry. This decision is made by the border patrol (US Customs Border Protection) at the point of entry into the US. When you go through customs and immigration, an official will verify your documents and check your background. The main reasons for entry into the US being refused involve any threat posed to the safety and security of US citizens by the person attempting to enter the country.

What can I do if my US visa application is denied?

Visa applications can be denied for many reasons, including criminal history or ineligibility for that specific visa type. If you fail to obtain a US visa, the best approach is to make a fresh application. You should also contact an accomplished immigration lawyer.

How long is it possible to remain in the US with a visa?

All nonimmigrant visas permitting travel to the United States are temporary. As such, they have an expiration data that varies according to visa type. Some nonimmigrant visas are valid for three months, while others are valid for three years. If you have an immigrant visa, also known as a green card, you are eligible to remain in the United States indefinitely.

What should I do when my visa expires?

When a US nonimmigrant visa expires, you can renew it by undergoing a similar process to that of the initial application. You are only required to renew this visa when the expiration date has passed.

New Illinois Marijuana Law Helps Non-Citizens

2019-12-15 in Blog, Crime and Immigration

New Illinois Marijuana Law Helps Non-Citizens

In Illinois, starting January 1, 2020, the recreational use of marijuana becomes legal. Under Federal immigration laws, however, its use remains prohibited. Even though the Illinois law does not expressly provide relief for non-citizens, a relatively unmentioned provision provides a notable benefit to those non-citizens who have disqualifying marijuana convictions in their backgrounds. This short article will discuss, first, what the pitfalls are in seeking any benefit such as legal permanent residency or naturalization from United States Citizenship and Immigration Services (“USCIS”) in relation to use of marijuana and, second, how the new Illinois law opens the door to vacate all disqualifying marijuana convictions, whether for possession or delivery.

Pertinent Federal laws regarding possession of Marijuana. Under federal law the possession of marijuana remains illegal. Under Title 21, Chapter 841, the federal statute simply provides as follows:

(a) Unlawful acts: Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;

(21 U.S.C. §841) (West, 2019). Marijuana, or “cannabis,” is considered a “controlled substance” under schedule I of the Act. 21 C.F.R. 1308.11(d)(23).

Under the Immigration and Nationality Act (“INA”), possession of marijuana is a disqualifying offense for those who seek permanent residency as well as those who seek naturalization. For those seeking permanent residency, not only a conviction, but also any “admission” to using marijuana could result in a denial. Likewise, for those seeking naturalization, not only a conviction, but also any “admission” could result in being denied naturalization as a failure to have “good moral character” under the INA.

Legalization of Possession of Marijuana, New Illinois Law P.A. 101-27 (eff. 6-25-19). Illinois prosecutors do not make a distinction between those who are citizens and non-citizens and, therefore, it is unlikely that anyone, whether a citizen or not, will receive a “conviction” for possession of marijuana in Illinois so long as it is less than 30 grams for Illinois residents, and less than 15 grams for non-residents of Illinois. It is also worth noting that not all use of marijuana is legal: (a) it must not be smoked in public, (b) if transporting it in a vehicle, it must be inaccessible during transport, i.e., in the trunk, and in a sealed container, and (c) one cannot be under the influence while driving.

The problem for non-citizens is that for any arrest USCIS many times requests a copy of the police report even if there was no conviction. USCIS may require an explanation of what happened during the arrest, usually looking for any clues for whether any violence, drugs, or weapons were involved. If USCIS sees in the police report that marijuana was involved and, at the interview, the non-citizen admits to the USCIS officer having used marijuana, although never charged and convicted for it, it would be a basis to deny relief and, depending upon the circumstances, place the non-citizen into removal proceedings. Thus, it is advisable to retain counsel for any applications for permanent residency or naturalization when there is any arrest for marijuana, despite the recent change in Illinois law.

Time to Commence Post-Conviction Proceedings, P.A. 101-27. Under the new Illinois law, those with marijuana convictions for possession under Section 4 or Section 5 of the Cannabis Control Act, may seek to vacate their convictions, apparently regardless of the date of conviction.

The law states very simply:

Any individual may file a motion to vacate and expunge a conviction for a misdemeanor or Class 4 felony violation of Section 4 or Section 5 of the Cannabis Control Act.

20 ILCS 2630/5.2(i)(3). P.A. 101-27. This provision not only allows for the vacature of possession convictions, but also convictions for delivery under Section 5 of the Cannabis Control Act. It is important for non-citizens to understand that mere expungement is insufficient under Federal immigration law – a complete vacature of the conviction, meeting the requirements under Board of Immigration Appeals case law is required to completely erase any conviction, including controlled substance convictions for marijuana possession and/or delivery. Despite the difficulty in meeting these requirements, the most difficult requirement we have encountered is that the person has allowed more than three (3) years to pass from the date of conviction, which subjects the petition to immediate dismissal in the criminal court. Now, however, the new Illinois legalization law has commenced the clock again for criminal judges to review and vacate these convictions. If you are a non-citizen who has a conviction for marijuana possession or delivery in your background, now is the time to discuss with counsel whether you may qualify to vacate the conviction and proceed to ask for either permanent residency or naturalization with USCIS. Depending upon your circumstances, you may have a very short time to do so, but in most cases it would be about 2 years, until the end of 2021.

DACA and Adjustment of Status

2018-11-18 in Blog, Family-Based Immigration

DACA and Adjustment of Status

Several people we have spoken to over the last few weeks have inquired concerning their eligibility for Adjustment of Status based upon marriage to a U.S. Citizen if they have received Deferred Action for Child Arrivals (“DACA”). It has been widely discussed that DACA was not meant to be a “path to citizenship.” In some instances, however, it might be, but it is our interpretation that it is limited to those with particular circumstances.

We will start out discussing some concepts in immigration law. First, “Adjustment of Status” is the term for receiving legal permanent residence within the borders of the U.S. In order to be eligible for Adjustment of Status, the person must enter the U.S. legally, i.e., with inspection by a border officer. This is in distinction to “consular processing” where a person obtains legal permanent residency through an immigrant visa obtained outside the U.S. Those who entered without inspection are required to leave the U.S. in order to obtain an immigrant visa and are subject to a 10 year bar when they leave because they have been in the U.S. illegally for over 1 year (a waiver or the “provisional” waiver forgives this illegal presence; if someone elects to do consular processing by the use of the provisional waiver, they need not leave the U.S. for more than a day or two.) The issuance of DACA, in and of itself, is not an admission that can be used for adjustment of status and, therefore, consular processing with either a regular waiver or provisional waiver is a very good option if they have a U.S. citizen spouse. It is important to keep in mind that DACA is merely a directive from the President which permits those who meet its requirements to remain here with work authorization so that they can further their education as well as work, despite having entered illegally and was carefully crafted so as not to confer any status.

Therefore, as discussed above, people with an illegal entry in most instances cannot adjust status. One exception to the legal entry requirement, however, is the amnesty of 2001 where if someone filed an application for an applicant prior to April 30, 2001, they need only pay a $1,000 penalty and they can adjust status despite having entered the U.S. illegally. Therefore, this discussion applies to DACA recipients who (a) entered illegally; (b) are married to a U.S. citizen; (c) never had a work or family petition filed for them or a parent prior to April 30, 2001, and (d) after being here for their first year, did not leave and return to the U.S.

In order for DACA recipients to be eligible to adjust status, they must have obtained “advance parole” to leave the U.S. and, in fact, left the U.S. and returned. Advance parole is a process by which USCIS gives a person permission to re-enter the U.S. for specific reasons. And the entry upon returning creates the “admission” which is required for adjustment of status. USCIS will grant advance parole to people, however, only in limited circumstances enumerated on the website, including humanitarian reasons, i.e., visiting a sick relative, educational purposes, i.e., study-abroad program, or employment purposes, i.e., work conferences. See http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions.

Following the 2012 Board of Immigration Appeals decision, Matter of Arrabally and Yerrabelly, 25 I&N Dec. 221, the Department of Homeland Security expressed its intent to adopt the interpretation that leaving the country pursuant to a grant of Advance Parole is not considered a “departure” which triggers the 3- and 10-year bar to re-entry. See, Memo, Jeh Johnson, Secretary, U.S. Dept. Of Homeland Security, “Directive to Provide Consistency Regarding Advance Parole” (Nov. 20, 2014). Therefore, DACA recipients who are granted parole into the U.S. after their travel abroad, who are beneficiaries of a visa petition, and a visa is immediately available, i.e., a U.S. citizen spouse petitioned for them, should be eligible to apply for residency while remaining in the U.S. without having to deal with this particular “bar” under the Immigration Act.

Despite this, it is our opinion that DACA recipients should use the advance parole process carefully. First, there must be a legitimate reason for requesting permission to leave the U.S. and not merely the intent to qualify for adjustment of status. Most importantly, it must be supported by sufficient documentation. Secondly, a person should not seek to use advance parole if he or she left and returned to the U.S. after having originally entered, i.e., you came to the U.S. twice or more. The reason for this is that the person could trigger a different and more strict 10 year bar (different from the one mentioned above) for having illegally remained in the U.S. for more than one year and then left and re-entered or attempted to re-enter. It is our experience that, even in this circumstance, USCIS may still issue an advance parole document and when you attempt to enter on it, U.S. Customs and Border Protection (“USCBP”), will deny entry for having violated this provision. It seems to make sense that USCIS would not issue the document if you are not entitled to return, but that is not the case.

It is important to note that most DACA recipients who are married to U.S. citizens also qualify for the provisional waiver and that should be considered as a good alternative if there are not legitimate reasons to leave the U.S. Further, there may be questions from either USCIS or USCBP concerning one’s marital status. If it is disclosed that one is married to a U.S. citizen, it is likely that the request for advance parole will be scrutinized carefully and, perhaps, denied. And, further, once the advance parole is granted by USCIS, you will also be scrutinized by USCBP upon entry, which has discretion to deny entry. It is possible that USCBP officers could inquire one’s intention to marry after entering the U.S. or whether one intends to adjust status after entering if already married, in which case, could form the basis for a denial of entry. We believe, therefore, that if one is married to a U.S. citizen and is a DACA recipient, one’s reasons for leaving the U.S. under advanced parole must be strong, along with sufficient supporting documentation. Further, if one is not yet married, one should refrain from marrying until after having left and returned on advance parole. In either case, if one’s reasons for leaving are weak, then either USCIS or USCBP will suspect an intent to avoid the immigration laws and will either deny the advance parole request or, worse, deny entry at the border once you have left.

Illegal Re-Entry Prosecution – Sentence Reduction

2015-10-02 in Blog, Client Success Stories

Illegal Re-Entry Prosecution – Sentence Reduction

Since 2013, our Client was facing criminal charges in the Northern District of Illinois, Eastern Division, for illegally re-entering the U.S. after having committed an aggravated felony. Illegal re-entry can carry a sentence of up to 20 years imprisonment. Under the sentencing guidelines, as calculated by the U.S. Probation Department, our Client was facing 46 – 57 months in federal prison. On September 17, 2015, the Judge sentenced the Defendant to only 15 months. Through several motions and arguments challenging the government’s assertions, the Judge agreed with defense counsel that a guidelines sentence would be unfair. Defense counsel for the Defendant were Carla I. Espinoza and James C. Ten Broeck Jr. from Chicago Immigration Advocates Law Offices.

This was a hard-fought and lengthy case since we had originally challenged the validity of our Client’s deportation orders uncovering a number of irregularities with his 1993 and 1994 deportation hearings, including a misleading translation. This was an important litigation strategy because it exposed the unfairness many immigrants face during deportation proceedings and allowed the Judge to consider it in favor of our Client. While the Judge ultimately decided that the deportation orders were valid, he acknowledged that defense counsel had challenged him to consider aspects of the law that were new to him. Having carefully weighed all possible defenses after this ruling, we advised our Client that his chances to prevail at trial were low and that he would benefit more by accepting a conditional plea of guilty so that we could focus on sentence reductions.

After the plea, adverse facts were brought to the Judge’s attention by the probation department in preparing its pre-sentence memorandum asserting that criminal history points ought to apply – when, in fact, none were added by the U.S. Attorneys’ Office – because the Defendant had allegedly re-entered the U.S. at a point in time much closer to when he committed the aggravated felony. Attorneys at Chicago Immigration Advocates argued that reliance on that factor would violate due process of law and confidentiality principles and, consequently, we were able to reduce the sentencing guideline calculation by 5 months and then persuade the Judge that an even lower sentence was appropriate.

The biggest part of this case was that the Judge was persuaded to go lower than what the sentencing guidelines recommended by at least 31 months. At oral arguments Attorney Carla I. Espinoza persuaded the Judge to reduce the sentence in light of Defendant’s motivations in returning to the U.S., acceptance of responsibility and rehabilitation, family ties to the U.S., and attempts to secure legal status in the U.S. The Judge agreed that a sentence within the guidelines range would be unfair to the Defendant in light of the totality of the circumstances. At the conclusion of the hearing the Judge told the Defendant: “[t]he attorneys have done a remarkable job – they had me think about things I had never thought of before.”

We are happy to share this success story with you because it demonstrates the importance of having good attorneys to represent you in any legal proceeding, but especially in illegal re-entry proceedings where the stakes are high. For this Client, our diligent representation meant the difference of serving 31 months (2 years, 7 months) less in federal prison than he would have likely served if his previous attorney continued to represent him.

Immigration Consequences of Driving Under the Influence

2015-09-15 in Blog, Crime and Immigration

Immigration Consequences of Driving Under the Influence

Driving under the influence of alcohol (“DUI”) convictions have varying degrees of severity for the non-citizen, depending upon the non-citizen’s status in the United States. There are four categories of non-citizens for purposes of considering the effects of a DUI conviction. This article will discuss the consequences, first, for someone here who entered without inspection, i.e., “illegally,” or “without papers.” Second, it will discuss a conviction for those who have overstayed their visas and are thus considered to be “overstays.” In the third category are those who may qualify for Deferred Action for Childhood Arrivals (“DACA”). And, fourth, there are those who have legal permanent residency status. At the end of this article we discuss the best course of action you can take to avoid a conviction for DUI

Without Inspection. For these persons the consequences can be grave. It is our experience that as a result of a DUI, especially someone who lives in the areas outside of Chicago, a person can find him or herself before an Immigration Judge facing removal proceedings as a result of a DUI arrest. The mere occurrence of an arrest is enough in some jurisdictions to get the attention of U.S. Immigration and Customs Enforcement (“USICE”) who process the person to be placed in proceedings before an Immigration Judge, called “removal” proceedings. In Chicago, this is typically not the case unless the person gets a sentence of confinement to jail.

Many people who have been here for a long time, in particular over 10 years, can request “Cancellation of Removal for non-Legal Permanent Residents” before the Immigration Court if he or she can show they have a U.S. citizen spouse, child, or parent who will suffer extreme and exceptional hardship if he or she is removed from the U.S. But a DUI conviction makes it very difficult to demonstrate the good moral character required before an Immigration Judge. In other words, an Immigration Judge is not likely going to take a risk that someone who has been caught drinking and driving will not stop doing so and, thus, will not continue put people’s lives in danger. A person in this situation, who has no status, may have a chance to get Cancellation of Removal if the DUI conviction is many years old and the hardship to the U.S. citizen is truly exceptional. Therefore, the lesson to learn here is that if you are in the U.S. without status you should do all that you can to contest the charges in order to get a finding of “not guilty” by the criminal judge or jury or have the case dismissed on a pretrial motion to suppress the arrest.

Many persons without inspection also qualify for the new “Provisional Waiver” program if he or she has a U.S. citizen wife or U.S. citizen son or daughter over 21 years of age to sponsor him or her. Again, a DUI conviction will make this process difficult if not impossible. U.S. Citizenship and Immigration Services (“USCIS”), which processes these waivers, will consider your conviction for a DUI disqualifying if it occurred in the last three years or permanently disqualifying if you have had more than one. USCIS and the U.S. Department of State (which processes the immigrant visas) will find such a person “inadmissible” under the Immigration and Nationality Act (“INA”) as a “habitual drunkard.” Again, the lesson here is that if you have a chance at obtaining status in the U.S. through the Provisional Waiver program you should not accept a plea of guilty to a DUI charge unless you and your attorney are fully convinced that you would never succeed at trial. It has been our experience that many persons have come to us seeking assistance either in Immigration Court or with consular processing only to have their chances ruined by having unwisely pleading guilty to a DUI charge. Again, the lesson is to not have a conviction for DUI.

It has been our experience that a DUI conviction will also make your chances at obtaining “prosecutorial discretion” very difficult if not impossible. Under a new initiative by President Obama several years ago, he authorized the government attorneys to close removal cases if the circumstances of the case indicated that the non-citizen has ties to the United States, e.g., family, business, home, and has a clean criminal record. Although technically a DUI is only a misdemeanor offense, it is enough to become a bar to obtaining prosecutorial discretion. Again, the lesson is to fight a DUI charge if you have entered the U.S. without inspection.

Overstays. For someone who entered the U.S. legally, but has overstayed his or her visa, he or she would likely be placed in proceedings for being out of status if he or she came to the attention by USICE as a result of a DUI arrest. Since persons who entered legally may be sponsored by a U.S. citizen spouse or son or daughter over 21 years of age, in this situation, they do not have the same difficult burden of proof for good moral character as required for someone who entered illegally. For instance, if a U.S. citizen spouse petitions for him or her, a DUI conviction has little consequence in the adjustment proceeding. But, lacking such a sponsor, e.g., not married any longer, then the person would be required to seek Cancellation of Removal for non-Legal Permanent Residents and would face the same burden of proof as a person who entered without inspection as discussed above.

Deferred Action for Childhood Arrivals (“DACA”). For a non-citizen who either entered without inspection or is an overstay, requesting DACA is always an option. The main requirements for DACA are that the non-citizen entered the U.S. prior to turning 16 years of age, was under the age of 31 as of June 15, 2012, and has at least a high school degree or GED. In addition, however, there are bars for criminal offenses. One of those is DUI, which is considered a “significant misdemeanor” barring the grant of DACA.

Legal Permanent Residents. For these persons, a conviction for DUI is really only an inconvenience if you have only one. A DUI conviction is not enough to warrant being placed in removal proceedings, unless there are other exacerbating circumstances, such as death, harm, or extensive property damage. A legal permanent resident can seek to be naturalized even with a DUI in his or her background and USCIS usually will grant Naturalization even if there is a recent DUI. At the same time, however, the grant of Naturalization is discretionary, so if the DUI is too recent, i.e., within the last year, or the person is still on probation or supervision, it is unlikely that the naturalization will be granted until that is completed. Further, if there is more than one DUI, the chances increase that the Naturalization will be denied if the application is within 5 years of the last conviction, but its not always the case if there are other positive factors. The period of time of having to fulfill the requirement for “good moral character” under the INA is 5 years. Thus, if you want to be certain that you will be granted Naturalization and you have more than one DUI, we recommend waiting out the 5 year period from the date of the order issuing the last DUI conviction.

What Can You Do if You Are Charged with DUI? The best course of action is to hire a good immigration attorney to give advice and guide you through the process if you are charged with a DUI, especially if you are not a legal permanent resident. We can recommend and work with good criminal defense lawyers who will be able to explain your chances of winning at trial after reviewing the evidence. There are a multitude of ways to contest a DUI charge, including contesting the accuracy of the breath test or blood test, the accuracy of the field tests, etc. Further, pursuant to our recommendations, the criminal defense attorney may also be able find a way to suppress the arrest for lack of a probable cause to arrest in the first place, e.g., you were not weaving, speeding, or doing anything wrong when you were pulled over.

Conclusion. It is our opinion that those without status, as opposed to those to are legal permanent residents, have too much to lose by improvidently pleading guilty to DUI cases. A plea should be avoided at all costs by hiring a good immigration attorney to work with a good reputable criminal defense lawyer.

We recognize that there is always the risk that by taking a case to trial, and losing, that a DUI defendant will face jail time and, by getting jail time, the defendant will then come to the attention of USICE. On the other hand, when a person pleas guilty and gets only probation the chances are better that it will not result in coming to the attention of USICE since there is no jail time involved. This is the way that prosecutors and criminal defense attorneys work to convince all defendants to plea guilty, i.e., by pointing out that jail time is possible or likely if you contest the case and lose. It is important to keep the following in mind: first, this is not always the case; it varies by jurisdiction and by judge and depends upon whether there is any previous criminal background. A good criminal defense attorney will be able to let you know what might happen in the event you lose after trial. And if the case is outside of Chicago it is likely that even before the DUI case is completed the person has already been placed in removal proceedings by USICE. Therefore, contesting the DUI case and getting jail time is of no consequence to being put in removal proceedings before an Immigration Judge – the worst has already happened, the person has already come to the attention of USICE. Therefore, the lesson to learn here is that a person who has no status should not be afraid to contest their case to the fullest extent possible, especially if he or she was arrested outside of Chicago, where he or she likely has come to the attention of USICE already. And, if in Chicago, the person ought to find out from the criminal defense attorney what may happen if there were a finding of guilty after contesting the case.

For most people, preserving the ability to obtain legal status in the U.S. with all its benefits, both financial and emotional, is worth the risk of few days in jail and would have taken this risk had they known the grave adverse consequences of a DUI conviction.