Immigration lawyer FAQ
We’ve received countless emails from many of you, our valued MATT.org members, asking for clarity on the complex Immigration issue.
You want help answering questions about immigration law in the U.S., which is not always an easy system to navigate, and we’re here to help.
Below you will find 20 of the most frequently asked questions. Click on the numbered question to read more.
Who is considered to be “illegal”?
Who can apply for someone to come into the United States to live and work?
I am a U.S. Citizen (USC) and am married to someone who is here illegally. Can I file paperwork for them to stay in the United States?
I am a U.S. Citizen and married to someone who entered legally, but overstayed their visa and is still in the United States. Can I apply for them?
I am a Legal Permanent Resident and want to apply for my spouse and children. Can I file paperwork for them to stay in the United States?
I am a Legal Permanent Resident and want to apply for my family, but don’t want to have to wait so long. What can I do?
How do I become a U.S. Citizen?
What is required in the Naturalization process?
I’ve been a Legal Permanent Resident for several years, but don’t know English very well, can I still apply for Citizenship.
I entered the United States illegally, am working without authorization, can I get a work visa?
So, if I’m in the U.S. illegally and can’t get a work visa and can’t apply with a family member, what should I do?
I have several people working for me who are “illegal”/undocumented. Can I apply for work visas for them?
Somebody told me I can just send my workers (people working for me illegally) to Mexico for six (6) months and then they can apply for a work visa. Is this true?
How do I get workers from Mexico to come and work for my company legally?
What kinds of workers can come to the United States?
I am a professional (engineer, architect, accountant, etc.) working in Mexico, how can I work in the United States?
I am here legally/illegally, but am in an abusive relationship with a U.S. Citizen/Legal Permanent Resident and they are threatening to deport me and refuse to file my paperwork. Is there anything I can do?
What if I tell an immigration official that I’m a U.S. Citizen to get through the border or checkpoint? I’ve done it for years.
What do I do if I’m picked up by Immigration?
Some of these laws seems so unfair and this whole process can be frustrating. What can I do?
Key Terms/Definitions
1) Who is considered to be “illegal”?
- Anyone who entered the United States without being admitted and inspected with a valid visa. This is also referred to as “undocumented”.
- Anyone who overstays their visa to be in the United States
- Anyone who violates the conditions of their visa (i.e. working without authorization)
2) Who can apply for someone to come into the United States to live and work?
There are two major categories within the immigration system:
Employment-Based Immigration (EB) and Family-based Immigration (FB)
EB - U.S. Employers are eligible to petition for certain categories of workers to come to the United States and work for their company. Depending on the category, this can be for a temporary or permanent basis. Most times, the employer has to go through the process called “Labor Certification”.
FB – You may be eligible to petition for a member of your family, but they must be an IMMEDIATE relative: a spouse, parent, child, son or daughter, or siblings of U.S. Citizens. U.S. Citizens can apply for their spouse, parent, or child with no wait time.
However, there are SEVERAL categories within family-based immigration that do have wait times, and it can vary depending on 1) the type of relationship and, 2) the age of the alien. The full list is available here:
http://travel.state.gov/visa/frvi/bulletin/bulletin_4205.html
You cannot file for cousins, aunts/uncles, grandparents, etc.
3) I am a U.S. Citizen (USC) and am married to someone who is here illegally. Can I file paperwork for them to stay in the United States?
Yes. However, if your spouse is in the United States “illegally” they are usually INELIGBLE to finish their paperwork in the United States, and MUST return to their home country to complete the application process to become a Legal Permanent Resident.
****PLEASE NOTE**** Nevertheless, even with an approved application, if this person returns to their home country to complete the process, and they have been in the U.S. for more than one (1) year, be aware that they will likely be BARRED from obtaining permanent residency for a period of ten (10) years and must stay in their home country for these ten (10) years. Waivers to this bar are rare and difficult to obtain, regardless of children and hardship to your family.
If you are in this situation, it is critical to speak with an immigration attorney before filing any paperwork.
4) I am a U.S. Citizen and married to someone who entered legally, but overstayed their visa and is still in the United States. Can I apply for them?
Yes. In most cases, your spouse is eligible to file an application for legal permanent residency in the United States, and they do not have to return to their home country to complete the paperwork.
5) I am a Legal Permanent Resident and want to apply for my spouse and children. Can I file paperwork for them to stay in the United States?
Yes. However,
• Depending on your home country, there is likely a VERY long waiting list. For example, as of today (April 2008), the wait time for Mexico, for spouses and children of Legal Permanent Residents, is nearly six (6) years.
• if they are here illegally they are ineligible to complete the process in the United States
• if they are here legally, it is likely that their permission to be here will expire before your application is approved, and they will still have to return to Mexico.
6) I am a Legal Permanent Resident and want to apply for my family, but don’t want to have to wait so long. What can I do?
Become a U.S. Citizen. The spouses, parents, and children of U.S. Citizens have NO wait time, and visas are IMMEDIATELY available to them.
7) How do I become a U.S. Citizen?
If you were not born in the United States or your parent(s) was not a U.S. Citizen, you will likely have to make an application for “Naturalization” through the U.S.C.I.S. Most times, you must be a Legal Permanent Resident FIRST.
If you are a Legal Permanent Resident and married to a U.S. Citizen, you can make an application for Naturalization after three (3) years of becoming a LPR, if you are not married to a USC, you have to wait five (5) years.
8) What is required in the Naturalization process?
• Physical Presence in the U.S.
• Good Moral Character
Please be aware - the U.S.C.I.S. requires the applicant to submit fingerprints and a background check along with your application for citizenship. If you have committed a crime, you may be ineligible for Citizenship at this time. Additionally, if you have failed to pay income taxes or child support, this may also cause you to be ineligible for U.S. Citizenship.
• Basic Knowledge of English, both written and spoken
• A U.S. History and Civics Exam
9) I’ve been a Legal Permanent Resident for several years, but don’t know English very well, can I still apply for Citizenship.
Depending on your age, the number of years you have been a LPR, or possibly health reasons, you may be exempt from some or all portions of the English requirements on the exam, but in most cases you will have to have basic knowledge of the English language.
10) I entered the United States illegally, am working without authorization, can I get a work visa?
No. At this time, individuals who entered the United States illegally and have been in the United States for more than one year are not eligible for work visas. Additionally, to make an application for a work visa when you have been illegally working and living in the United States for a long period could seriously jeopardize any future chance at obtaining documents as well.
11) So, if I’m in the U.S. illegally and can’t get a work visa and can’t apply with a family member, what should I do?
Sadly, your options are very limited - wait or go back to your home country. However, based on the law in place right now, if you have been in the U.S. illegally for more than one (1) year, and you return to your home country, you are barred from obtaining a visa for a period of ten (10) years.
12) I have several people working for me who are “illegal”/undocumented. Can I apply for work visas for them?
No. If an individual has been working in the United States without valid authorization they are barred from obtaining ANY immigration benefit (i.e. a work visa). Additionally, based on new changes in the law, you and your business could be criminally liable for attempting to obtain work visas for individuals you KNOW are here illegally.
13) Somebody told me I can just send my workers (people working for me illegally) to Mexico for six (6) months and then they can apply for a work visa. Is this true?
Again, based on changes in the law, by applying for someone that you know was in the United States illegally, and working without authorization, this could make you an accessory to violating the immigration laws of the United States. You could lose your business as well as be charged criminally. Do people do it anyway? Yes, but it is a high risk to your business and you personally.
It my law practice, I have yet to find an employer that has an employee that is worth going to jail over.
14) How do I get workers from Mexico to come and work for my company legally?
Depending on the type of work, most U.S. companies can make an application for “Labor Certification” through the U.S. Department of Labor. If approved, this process allows employers to hire foreign workers to come in the United States and work for their business for a specific period of time.
15) What kinds of workers can come to the United States?
There are multiple categories of workers who can come to the United States, the two main categories are “skilled” (someone with a bachelor’s degree or the equivalent) and “unskilled” (usually general laborers – construction, food service industry, domestic workers, etc.). The most common work visas come through the H visas, the H-1B, the H-2B, and H-2A.
H-1B – for skilled workers, however there is a limited number of visas available each fiscal year (65,000 for general skilled workers, and 20,000 for those with an “advanced” degree). Some individuals are exempt from the cap, such as employees of Universities or those organizations affiliated with a higher education institution. The first day to file each year is April 1st. For 2008, the cap was met on April 8th.
H-2B – unskilled non-agricultural workers. These types of visas are for a temporary basis (less than 10 months out of the year), but most are renewable each year. The type of work can either be seasonal or “peakload” work. Examples are landscapers, domestic workers, food processing, and general construction workers. There is also a limited number of visas issued in this category as well – 66,000.
H-2A – unskilled agricultural workers. These types of visas are for a temporary basis (less than 10 months out of the year), and are renewable each year. The type of work is usually seasonal. There is no limited to the number of visas issued each year, however, an employer must be willing to provide free housing and transportation, as well as pay the Adverse Effect Wage Rate set by the U.S. Department of Labor for their state. This generally ranges from the high $8.00 rate to, in some cases, around $10.00/hour.
16) I am a professional (engineer, architect, accountant, etc.) working in Mexico, how can I work in the United States?
Under NAFTA, professionals working in Canada and Mexico have been afforded a very unique employment opportunity called a TN Visa (“Treaty Nation” Visa). So long as the professional can provide documentation for their qualifications (a degree, work resume, certificates of training, etc.) and have a valid offer of employment from a U.S. company there are eligible for a TN visa to work in the United States.
The employment is on a non-immigrant basis and is only for a period of one (1) year. However, at this time, it is renewable indefinitely and an extension can be applied for in the U.S. each year.
For a complete list of professional occupations, you can visit the NAFTA website.
17) I am here legally/illegally, but am in an abusive relationship with a U.S. Citizen/Legal Permanent Resident and they are threatening to deport me and refuse to file my paperwork. Is there anything I can do?
Yes. First, seek help and get out of your abusive situation immediately.
Secondly, the U.S.C.I.S. has a special petition under the Violence Against Women Act (VAWA) that allows spouses who have been abused (mentally, verbally, or physically) to self-petition; meaning that you do not need your U.S. Citizen or LPR spouse to apply for you and you can do it on your own. There are several steps to this process, so you need to contact an attorney if this applies to you or someone you know.
18) What if I tell an immigration official that I’m a U.S. Citizen to get through the border or checkpoint? I’ve done it for years.
Do not do this. If you present yourself as a U.S. Citizen to an Immigration Officer and are not a U.S. Citizen, you will be deported from the United States, and will be PERMANENTLY barred from EVER being able to re-enter the United States.
19) What do I do if I’m picked up by Immigration?
If you are married to a U.S. Citizen, Legal Permanent Resident, or have an immediate relative who is a U.S. Citizen, you may be eligible to stay in the United States. Thus, if you are picked up by immigration, be sure to request to speak with an attorney and do not sign an application for Voluntary Departure.
20) Some of these laws seems so unfair and this whole process can be frustrating. What can I do?
# 1 - Vote (if you are eligible), and support candidates that are aware of your concerns for our immigration system.
#2 - Seek the advice of a good immigration attorney. Sometimes it’s difficult to hear ‘bad news’, but honest and realistic legal advice is much better than uninformed and dishonest advice.
Key Terms/Definitions
U.S.C.I.S. - The United States Citizenship & Immigration Service (formerly “INS”). This agency falls under the direction of the Department of Homeland Security (DHS), and carries out the U.S. Immigration Policies/Processes.
I.C.E. – Immigration and Customs Enforcement, formerly known as the “Border Patrol or La Migra”, this branch of the DHS is in charge of border security, immigration raids, and general enforcement of the immigration laws of the United States.
Legal Permanent Resident (LPR) – An individual who has been approved to live and work in the United States permanently. This can be obtained through a family member or, in some cases, via employment. However, if you violate the conditions of this residency (i.e. commit a crime, fail to renew your card, etc.) you can lose it.
Green Card – Often refers to the actual card that the U.S.C.I.S. issues when you become a Legal Permanent Resident (they are no longer green). It is usually issued for a certain period and MUST BE RENEWED in order to maintain status in the United States.
Naturalization - The process through which a person becomes a U.S. Citizen. In most cases you must become a LPR first.
Discaimer – The above FAQs and information are for informational purposes only, and should NOT be considered legal advice. Under no circumstances will any lawyer be responsible for (1) any information contained on or omitted from the site(s), (2) any person’s reliance on any such information, whether or not the information is correct, current or complete, (3) the consequences of any action you or any other person takes or fails to take, whether or not based on information provided by or as a result of the use of the sites.
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