Author Archives: Jenn Clore

1. The tax responsibilities of immigrants in the United States

   February 28, 2023 6:00 am Leave a Comment

   Each year, US residents file a tax return with the Internal Revenue Service (IRS) that reports income, expenses, and other pertinent tax information. Taxation is one of the biggest sources of income for the US government. In addition, federal income taxes are used to provide for national programs such as national defense, veterans and foreign affairs, social programs,  community development, law enforcement, and interest on the national debt. 

   In general, many immigrants are considered US tax residents and are taxed in the same manner as US citizens on their worldwide income. The contributions made by immigrants have always been vital to the United States economy. Taxes paid by immigrants support local schools, Social Security, Medicaid, and other federal and state public benefits programs. As an immigrant, participation in the economy also helps to create a demand for goods and services, thereby boosting job growth. 

   Do I have to pay US taxes if I’m not a US citizen?

   Like US citizens, new residents of the United States that are authorized to work and have either a Social Security Number (SSN) or an Individual Taxpayer Identification Number (ITIN) are required to pay state and federal income taxes. The IRS, the government agency created to administer and enforce internal revenue laws, defines residency differently than US immigration law. For tax purposes, workers are defined as either resident or nonresident aliens. 

   Resident aliens

   Resident aliens are non-US citizens with a green card or can pass the substantial presence test. Green card holders must report and pay tax on all of their income and file a Form 1040 unless they are treated as a resident of a foreign country under an income tax treaty. As a green card holder, you automatically become a US tax resident the year you enter the US on an immigrant visa or when you were approved for an adjustment of status. As a tax-paying resident, you must file Form 1040 with the IRS annually by April 15. 

   If you do not have a green card, you may be considered a US tax resident under the substantial presence test. The substantial presence test means that you have been physically present in the United States for at least 31 days out of the current year and 183 days during a three-year period that includes the current year. You are treated as present in the US on any day you are physically present in the country, at any time during the day. However, some individuals are exempt from this rule:

   • An individual temporarily present in the US as a foreign government-related individual under an “A” or “G” visa, other than individuals holding “A-3” or “G-5” class visas.
   • A teacher or trainee temporarily present in the US under a “J” or “Q” visa who substantially complies with the requirements of the visa.
   • A student temporarily present in the US under an “F,” “J,” “M,” or “Q” visa who substantially complies with the requirements of the visa.
   • A professional athlete temporarily in the US to compete in a charitable sports event.

   Nonresident aliens

   According to the IRS, a nonresident alien is a non-citizen who is not a green card holder and does not pass the substantial presence test. A nonresident who earns income as a US business owner or as an employee still must file US taxes by submitting Form 1040-NR.

   In the year of transition between being a nonresident and a resident for tax purposes, you are generally considered a Dual-Status Taxpayer. A Dual-Status Taxpayer files two tax returns for the year—one return for the portion of the year when considered a nonresident and another return for the portion of the year considered a resident. In some situations, a taxpayer can elect to be treated as a full-year resident in the transition year to avoid filing two separate returns.

   Tax filing basics

   Tax season generally begins in January and ends on April 15. During this time, your employer will either mail or electronically deliver various tax forms for you to submit to the IRS. The deadline to submit the forms is April 15. Generally, you will need to file a W-4 form and a version of Form 1040, depending on your tax residency status. 

   While working in the United States, your employer will ask you to complete a W-4 form. W-4 forms determine the amount of your income that will be withheld in taxes. The W-4 form includes a worksheet to help you determine how many allowances to claim. An allowance reduces the amount of taxes withheld from your income. You can claim an allowance for yourself, a spouse, and one for every dependent you claim. The IRS defines a dependent as “either a qualifying child or a qualifying relative of the taxpayer. The taxpayer’s spouse cannot be claimed as a dependent. Some examples of dependents include a child, stepchild, brother, sister, or parent.”

   Federal law requires US tax residents and US citizens to report any worldwide income, including income from foreign trusts and foreign bank and securities accounts. In most cases, affected taxpayers must complete and attach Schedule B to their tax return. Part III of Schedule B asks about the existence of foreign accounts, such as bank and securities accounts, and usually requires an individual to report the country in which each account is located.

   If you have overpaid your taxes during the year because too much money was withheld from your paycheck or because you submitted excess payments to the IRS, you can claim your refund when you submit your tax returns. The IRS will send your refund via mail, or you can submit your bank information and request to have your refund distributed using direct deposit.

   There are three common ways to file your taxes:

   • File online through services like Turbo Tax, HR Block, and Tax Slayer
   • Mail in your taxes documents by following the directions on the IRS website
   • Work with an authorized tax professional like HR Block, Jackson Hewitt, or Liberty Tax

   The IRS has a Volunteer Income Tax Assistance (VITA) program that helps taxpayers who cannot afford tax preparation, need the help of a translator, or have questions about applying for an ITIN. You can visit a VITA site by going to the IRS Free Tax Prep site and entering your ZIP code. However, before you visit the website, read through Publication 3676-B to learn more about the services that VITA offers. Also, check out what to bring with you so that you can collect all of the documents you’ll need to apply.

   Tax credits and deductions

   All US tax rules apply to you as a US tax resident, including deductions and credits available to citizens of the US. Credits and deductions can help you save money throughout the year on your taxes or contribute to a bigger tax refund. 

   A few examples of credits include:

   Earned income credit 

   To be eligible, you must:

   • Have worked and earned income under $59,187
   • Have investment income below $10,300 in the tax year 2022
   • Have a valid Social Security number by the due date of your 2022 return (including extensions)
   • Be a US citizen or a resident alien all year
   • Not file Form 2555, Foreign Earned Income
   • Meet certain rules if you are separated from your spouse and not filing a joint tax return

   Child care credit 

   Eligibility requirements include:

   Resident alien:

   • you paid someone to care for your child so you can work or look for work; and
   • The child is under 13 years old;
   • You are able to claim an exemption for the child.

   Nonresident alien:

   • You paid someone to care for your child so that you can work or look for work; and
   • The child is under 13 years old;
   • You can claim an exemption for the child;
   • if you are married, you are filing a joint return with a US citizen or resident spouse.

   Tax deductions lower your taxable income for the year. Some examples of tax deductions include

   • Charitable donations – When you donate cash to a public charity, you can generally deduct up to 60% of your adjusted gross income
   • Medical expenses – The IRS lets you deduct medical expenses that are more than 7.5% of your taxable income 
   • State and local taxes – You may deduct up to $10,000 ($5,000 if married filing separately) for a combination of property and state and local income taxes or sales taxes.

   These are some examples of what you may be qualified for. It’s best to work with a tax professional to take full advantage of all the ways to save on your tax return and maximize your tax refund. 

   Do undocumented immigrants pay US taxes?

   In the United States, there are different types of taxes, such as income tax, payroll tax, sales tax, and property tax. Regardless of your immigration status, you will pay some type of tax. Like everyone in the United States, undocumented immigrants pay sales tax, and if they pay rent, they also pay property taxes. Undocumented immigrants also file income tax returns. As a report from the Institute on Taxation and Economic Policy (ITEP) points out, “the best evidence suggests that at least 50 percent of undocumented immigrant households currently file income tax returns using Individual Tax Identification Numbers (ITINs), and many who do not file income tax returns still have taxes deducted from their paychecks.” The end result is that undocumented immigrants are paying billions of dollars each year in taxes. 

   It is required by law that individuals who reside in the United States and earn an income, whether legally or not, must pay taxes on their income and file a tax return. Undocumented residents are not eligible for an SSN and must use an ITIN when filing a tax return. To receive an ITIN to file taxes, you must file Form W-7 – Application for IRS Individual Taxpayer Identification Number, along with your other tax documents. 

   A record of filing income tax returns can help defend against deportation and prove that you are a responsible and contributing member of society with a good moral character. Undocumented immigrants should also consider paying income taxes because they may eventually benefit from them when they become citizens. For example, naturalized citizens may include earnings from before they became citizens in their Social Security application if they paid taxes on those earnings.

   Regardless of your immigration status, it’s important to understand your tax obligations and how they affect you based on immigration law. And as always, if you are uncertain of how your actions will affect your immigration status, contact an immigration lawyer.

    

2. New entry process for Venezuelans, Nicaraguans, Haitians, and Cubans causes controversy

   February 27, 2023 11:19 am Leave a Comment

   On January 5, 2023, the Department of Homeland Security (DHS) announced a new lawful way for qualifying Venezuelans, Cubans, Haitians, and Nicaraguans with US-based supporters to travel by air and temporarily reside in the United States. Individuals arriving under this new process may also apply for work authorization. 

   The Biden Administration has stated that the new rules aren’t a permanent solution but a stopgap to deal with an overwhelming influx of people trying to enter the US. In 2022, border encounters reached 2.76 million, an increase of 1 million over the previous year. The new program aims to stop people from crossing outside an official port of entry without a visa status. 

   Program Overview

   Under a new immigration policy for Venezuelans, Nicaraguans, Haitians, and Cubans, the Biden administration will allow up to 30,000 qualifying migrants total from the four countries to reside legally in the United States with permission to work for up to two years – provided they do not attempt to enter the country illegally. In addition, qualifying individuals must show they have US sponsors to support them financially. 

   This program marks a massive change in US immigration rules, and it will stand even as the US Supreme Court considers ending a border expulsion policy known as Title 42 that has allowed authorities to rapidly expel asylum seekers without offering them a chance to seek protection. The US department has stated, ” Nationals from Venezuela, Cuba, Haiti, and Nicaragua who do not avail themselves of this process, attempt to enter the United States without authorization, and cannot establish a legal basis to remain will be removed or returned to Mexico.” 

   The new immigration policy also depends on the Mexican government’s “willingness to accept the return or removal of nationals” from those four countries. The program aims to reduce the irregular migration of Cubans, Haitians, Nicaraguans, and Venezuelans, to lawfully and safely bring qualifying individuals into the United States on a case-by-case basis for urgent humanitarian reasons or significant public benefit. According to the Department of Homeland Security, a similar program for Venezuelans was implemented in October 2022, resulting in a 90% drop in arrivals. 

   Beneficiary Process for Cubans, Haitians, Nicaraguans, and Venezuelans

   To participate in the program, migrants from the four countries, also known as “beneficiaries,” must: 

   • Be outside of the United States
   • Have a supporter in the United States who agrees to provide them with financial support for the duration of their parole in the United States;
   • Have a valid, unexpired passport;
   • Undergo and clear robust security vetting;
   • Meet other eligibility criteria; and
   • Warrant a favorable exercise of discretion.

   Qualified beneficiaries outside the United States who lack US entry documents may be considered, on a case-by-case basis, for advanced authorization to travel and a temporary period of parole for up to two years for urgent humanitarian reasons or significant public benefit. 

   The first step in the process is for the US-based supporter to file a Form I-134A, Online Request to be a Supporter and Declaration of Financial Support, with USCIS for each beneficiary they seek to support, including minor children. 

   Beneficiaries can also request advance travel authorization if they:

   • Are outside of the United States;
   • A national of Cuba, Haiti, Nicaragua, or Venezuela; or be an immediate family member (spouse, common-law partner, and/or unmarried child under the age of 21) who is traveling with an eligible Cuban, Haitian, Nicaraguan, or Venezuelan;
   • Have a US-based supporter who filed a Form I-134A on their behalf that USCIS has vetted and confirmed;
   • Possess an unexpired passport valid for international travel;
   • Provide for their own commercial travel to an air US POE and final US.destination;
   • Undergo and pass required national security and public safety vetting;
   • Comply with all additional requirements, including vaccination requirements and other public health guidelines; and
   • Demonstrate that a grant of parole is warranted based on significant public benefit or urgent humanitarian reasons and that a favorable exercise of discretion is otherwise merited.

   An individual is ineligible to be considered for parole under these processes if that person is a dual national or permanent resident of, or holds refugee status in, another country unless DHS operates a similar parole process for the country’s nationals.

   Financial supporter details

   A financial supporter must agree to financially support a beneficiary while they are in the United States. According to USCIS, examples of individuals who meet the supporter requirement include:

   • US citizens and nationals;
   • Lawful permanent residents, legal temporary residents, and conditional permanent residents;
   • Nonimmigrants in lawful status (who maintain their nonimmigrant status and have not violated any of the terms or conditions of their nonimmigrant status);
   • Asylees, refugees, and parolees;
   • Individuals granted Temporary Protected Status (TPS)

   As a supporter, you must submit Form I-134A, Online Request to be a Supporter and Declaration of Financial Support, and provide proof of financial stability. Some examples of financial evidence may include your federal income tax filing, bank statements, Form W-2, Wage and Tax Statement from your employer, pay stub or pay statements from the past few months, and any proof of income coming into your household. Access to the processes is free. Neither the US-based supporter nor the beneficiary are required to pay the US government a fee to file Form I-134A and be considered for travel authorization or parole.

   Beneficiaries are not obligated to repay, reimburse, work for, serve, marry, or otherwise compensate their supporters in exchange for filing Form I-134A or providing financial support. As a supporter, the beneficiary does not have to live with you during their parole period. However, you may be responsible for other types of support, including helping the beneficiary secure safe and appropriate housing, health care, and transportation, obtaining initial necessities, submitting forms such as the employment authorization application, learning English, obtaining employment, and enrolling children in school.

   Although an individual must file and sign Form I-134A, you can do so in association with or on behalf of an organization, business, or other entity that will provide some or all the necessary support to the beneficiary. You will need to submit evidence of the entity’s commitment to supporting the beneficiary when filing Form I-134A. Documents to support this could include a letter of commitment or other documentation from an officer or other authorized representative of the organization, business, or other entity describing the monetary or other types of support (such as housing, basic necessities, transportation, etc.) the entity will be providing to the specific beneficiary (reference the USCIS Policy Manual for more information).

   Four countries in focus

   Venezuela, Nicaragua, Cuba, and Haiti have been singled out for the program because the four countries account for the most people traveling through Mexico to cross the border into the United States. Difficulties in deporting the migrants back to their home countries also play a factor due to the lack of diplomatic relationships the countries have with the US and the countries’ refusal to accept deportations. Unfortunately, each country’s political turmoil and desperate situations force people to flee in alarming numbers. 

   Venezuela

   In Venezuela, an ongoing economic and political crisis has forced people to flee the country, including inflation that reached a crippling 155 percent in October 2022, according to Reuters, causing about 7 million Venezuelans to leave the country. More than half of its citizens face challenges accessing food, healthcare, education, housing, and stable employment.  

   An article by Forbes shines a light on the country’s unrest, “When oil prices were high in the years before 2015, Venezuela’s socialist government took on more debt rather than saving money. When oil prices collapsed, the government lost access to financing. To keep servicing the debt, the government reduced imports. That resulted in a collapse in the supply of food, medicine, and intermediate inputs, including spare parts, seed, fertilizers, and other items needed to keep the economy going and prevent people from starving.”

   Cuba

   In Cuba, deepening poverty due to the impact of tightened US sanctions and the effect of the Covid-19 pandemic, as well as political repression in the wake of mass anti-government protests in 2021, caused an attempted 220,908 crossings at the southern border in 2022, a nearly sixfold increase from the previous year according to data from the Department of Homeland Security.

   Food has become even more scarce and more expensive, lines at pharmacies with scant supplies begin before dawn, and millions of people endure daily hours-long blackouts. The situation has worsened since the Cuban government nixed a dual currency system and kept only the Cuban peso. In addition, Cuba’s tourism sector has drastically declined, especially during the pandemic, adding to the economic crisis. 

   Nicaragua

   For the first time in Nicaragua’s history, the small nation of 6.5 million is a major contributor to the mass of people trekking to the US southern border, having been displaced by violence, repression, and poverty. More than 180,000 Nicaraguans crossed into the United States this year through the end of November 2022 — about 60 times as many as those who entered during the same period two years earlier, according to US Customs and Border Protection data.

   Although the International Monetary Fund’s figures show about 25 percent of Nicaraguans live in poverty, analysts say the actual rate is likely far higher as some two-thirds of the nation live on about $120 a month. According to Human Rights Watch, political repression in the country has intensified under President Daniel Ortega, creating an atmosphere of terror and a faltering economy. In 2018, protests erupted over changes to social security rules that would have required workers to pay more and retirees to receive less. But the demonstrations expanded to mass anti-government uprisings across the country that lasted months and led to several hundred deaths.

   Haiti

   According to Human Rights Watch, Haiti is experiencing a dire security situation, including loss of government control over strategic areas to the hands of dangerous armed gangs, widely believed to be financed by politicians and to have police officers on their payroll. In addition, violence has worsened an already severe humanitarian crisis.

   Haiti is also enduring a deep political and constitutional crisis after the assassination of President Jovenel Moïse in July 2022. The following month, the country suffered another deadly earthquake. In 2010, many Haitians migrated to South America after a devastating earthquake that the country could not fully recover from. 

   Despite the desperation in these countries, migrants coming to the US from Cuba, Venezuela, Nicaragua, and Haiti won’t be able to claim asylum under the new program.

   The new program may limit the opportunity for asylum

   The Biden administration hopes the new program will speed up the immigration process at the border by taking some of the asylum cases out of the hands of the overloaded immigration courts. The number of cases in the immigration courts has exploded over the past decade from more than 262,000 in 2010 to 1.26 million in 2020. Meanwhile, just over 231,000 cases were completed in 2020. The program intends to discourage unauthorized migration by allowing asylum officers to conduct the first set of interviews to reduce the numbers. However, individuals who fail to follow this new process may face certain conditions on asylum eligibility and expulsion under Title 42.

   Homeland Security officials said they would begin denying asylum to those who circumvent legal pathways and do not first ask for asylum in the country they traveled through en route to the US. Previously, Title 42 under President Trump’s administration, US required asylum seekers to wait across the border in Mexico. But clogs in the immigration system created long delays, leading to dangerous camps over the border where migrants were forced to wait. That system was ended under Biden, and the migrants who are returned to Mexico under the new rules will not be eligible for asylum. 

   Previously, Haitians, Cubans, and Nicaraguans had been exempted from Title 42, partly because their home countries, and Mexico, refused to take them back. However, as part of this new program, Mexico has agreed to accept up to 30,000 migrants from the four countries each month who are denied US entry. 

   The requirements for granting asylum are narrow, and only about 30% of applications are granted. That has created a system where migrants try to cross between ports of entry and are allowed into the US to wait out their cases. But there is a two million-case immigration court backlog, so cases often are not heard for years. Unfortunately, this new program puts migrants trying to cross the border in a hopeless situation if they can not secure a financial sponsor. 

   That’s the main issue for critics of the new policy: Even though it identifies a legal pathway for people in crisis to come to the US, it prevents many more who are likely highly vulnerable — without a financial sponsor, a safe and legal route, or the ability to apply for the program online — from applying for asylum, shuttling them to Mexico in unsafe and inadequate conditions. If you or someone you know may be affected by the new entry process or in need of asylum, please contact a reputable immigration attorney. 

3. What happens to your marriage-based visa if your US-citizen spouse dies

   January 31, 2023 3:44 pm Leave a Comment

   Marriage to a US citizen does not automatically provide citizenship. Spouses of US citizens can apply for naturalization after three years of living in the United States as long as they remain married and can prove that they reside in the same household as their citizen spouse. Naturalization is the process by which US citizenship is granted to a lawful permanent resident after meeting requirements established in the Immigration and Nationality Act (INA). 

   As a general rule, a lawful permanent resident can apply for naturalized citizenship after being a green card holder for at least five years. However, spouses of US citizens can apply sooner, at three years of being a permanent resident. But what happens when the US citizen spouse dies? Fortunately, it is still possible for the widowed spouse to obtain a green card and eventually become a US citizen. 

   The widow penalty

   Prior to October 28, 2009, the United States Citizenship and Immigration Services (USCIS) required the surviving spouse to be married for at least two years before the US citizen spouse passed away before they could apply for a green card. This requirement was in an effort to prevent fraudulent marriages for the purpose of green card eligibility. This rule, known as the “Widow’s Penalty,” was considered unfair and unjustly penalized the widow(er) in the case of the untimely death of their US citizen spouse. 

   USCIS has since removed the two-year marriage requirement, so surviving spouses can now apply for permanent residence in the United States as long as they meet the basic requirements of the I-360 Petition for American citizens, widows, or special immigrants. This petition informs USCIS that a person was married to a US citizen who recently died and that they are interested in pursuing a green card based on that marriage. Petition eligibility requires that: 

   • You were lawfully married to a US citizen
   • The marital relationship was made in good faith
   • You did not marry for immigration benefits
   • There are no inadmissibility criteria against you or your spouse

   You also must be able to provide the following:

   • Proof of your late spouse’s US citizenship
   • A copy of your marriage certificate 
   • Proof you or your late spouse terminated any prior marriages (if applicable); and
   • A copy of your late spouse’s death certificate

   According to USCIS, where you file depends on “your eligibility category, where you live, and whether you are also filing Form I-485, Application to Register Permanent Residence or Adjust Status, at the same time (known as “concurrent filing”). For more information, visit the USCIS website or consult with a reputable immigration attorney. 

   What happens to your pending green card petition when your spouse dies?

   If Form-I-130 (alien relative petition) is filed, it will be converted to Form I-360 (Petition for Amerasian, Widow(er), or Special Immigrant). The petition can include any children under the age of 21 or unmarried children. You cannot be separated or divorced from the deceased spouse and cannot marry another individual since that will negate the application. 

   You can also file a Form 1-485 Residence or Adjust Status with your Form I-360 or after you have filed Form I-360 (or if your converted Form I-130), whether it is pending or approved. The purpose of Form 1-485 is to prove that you are eligible for US permanent residency. If you already filed Form I-485 based on the petition your spouse filed, USCIS will continue to process this application, and you do not need to file another one. If you were awaiting application approval when your spouse died, you would not acquire any more days of unlawful presence while waiting for the USCIS to rule on a case. 

   If you live outside of the United States and your Form I-130 is pending, your application is converted to a Form I-360 petition. Once the application is approved, USCIS will send the application to the National Visa Center. In most cases, you must complete Form DA-260 (Online Immigrant Visa and Alien Registration Application) when applying for a green card outside the United States. Filing will go through USCIS and the National Visa Center (NVC). After completing the form, the NVC will forward your case to a local US embassy or consulate. 

   Can you apply for a green card after your spouse dies?

   As a spouse of a deceased US citizen, you may file a petition on your behalf based on the following conditions: 

   • You were married to a US citizen who is now deceased and who was a US citizen at the time of death
   • Your citizen spouse died less than two years before the date on which you file the petition
   • You were not legally separated from your citizen spouse at the time of death; and
   • You have not remarried
   • You must reside legally in the consular district of the US Embassy or Consulate at which you are requesting to file
   • You must be able to remain in the country where the Embassy or Consulate is located for the time it takes to process the visa

   It is important to note that you have a period of two years, counted from the death of your spouse, to fill out and submit Form I-360 (Petition for Amerasian, Widow(er), or Special Immigrant). If you were living apart at the time of your spouse’s death, you may still be able to apply if you do not have a court-ordered legal separation.

   What happens to your Form I-751 when your spouse dies?

   Every marriage-based green card applicant who has been married for less than two years receives a conditional green card, also known as “conditional permanent residency.” The conditional residence is only valid for two years, and Form I-751 (Petition to Remove Conditions on Residence) would need to be filed before the conditional residency expires.

   If your spouse dies before you can remove the conditions on your permanent residency, your Form I-751 will need to include a copy of your spouse’s death certificate and any evidence of the life you shared together. An immigration attorney can help to verify the appropriate documentation. 

   You can file your Form I-751 any time between when your spouse dies and when your conditional green card expires without waiting for the required 90-day window prior to expiration. Below is a list of items you need to prepare to file with your request.

   • A copy of your spouse’s death certificate
   • A written statement specifically asking USCIS “to approve the petition under section 204(l)” despite your relative’s death. There is no specific form or fee to make this request. 
   • Proof that you resided in the US at the time your spouse died and that you continue to live in the US
   • Any new proof that your marriage was entered into in good faith, specifically new documents you obtained after filing Form I-751. This includes recent joint bank statements, new utility bills, and tax returns. 

   Can you file for citizenship after your spouse dies?

   Typically, if you have a green card and are a spouse of a US citizen, you are eligible for citizenship after three years of continuous residence in the United States. Unfortunately, if your spouse dies before three years, you must meet the full naturalization requirement of five years. 

   Although the Immigration and Nationality Act doesn’t state this directly, it is referenced in the Code of Federal Regulations (8 CFR § 319.1(b)(2)(i).), which states: “A person is ineligible for naturalization as the spouse of a United States citizen under Section 319(a) of the Act if, before or after the filing of the application, the marital union ceases to exist due to death or divorce, or the citizen spouse has expatriated.” 

   If you had filed an N-400, Application for Naturalization, before your spouse died, USCIS policy states, “An applicant is ineligible to naturalize as the spouse of a US citizen if the US citizen dies any time prior to the applicant taking the Oath of Allegiance.”

   As a widow(er) of a US citizen, you can naturalize as a citizen if you meet all of the following requirements:

   • Are at least 18 years old
   • Lived within the same state for at least three months before filing the application
   • Met the 5-year continuous residence requirement
   • Met the 30-month physical presence requirement
   • Able to pass the English test as well as the US civics test
   • Is a person of good moral character

   If you are a surviving spouse of a deceased US service member who was killed in combat, there are separate immigration benefits under section 1703 of Public Law 108-136. In addition, you may self-petition for “immediate relative” Status on Form I-360. For more information, visit USCIS Widow(er) page.

   Can I receive my deceased US citizen spouse’s Social Security benefits?

   Whether you’re in the process of obtaining your green card or citizenship, you may still qualify to receive your deceased spouse’s social security benefits. Social Security is a federal program that provides financial security for retired workers and their families. According to the Social Security Administration, “Social Security replaces a percentage of a worker’s pre-retirement income based on their lifetime earnings. The amount of the average wages that Social Security retirement benefits replace depends on the US citizen’s earnings and when they choose to start benefits.”

   For you to start receiving the benefits on behalf of your deceased US citizen spouse, the following must be true:

   • You and your spouse must have been married for at least nine months. This is waived if your spouse dies while serving active military duty. 
   • Your spouse has contributed to Social Security for at least ten years. 
   • Your spouse had reached retirement age before their death. Currently, the full retirement age is 66 if born from 1943 to 1954. For anyone born in 1960 or later, full retirement benefits are payable at age 67. 
   • You must be at retirement age

   Social security benefits are also dependent upon the country you live. You may not claim US Social Security benefits while living in Cuba or North Korea. In addition, the US cannot send payments to:

   • Azerbaijan
   • Belarus
   • Kazakhstan
   • Kyrgyzstan
   • Moldova
   • Tajikistan
   • Turkmenistan
   • Uzbekistan

   Upon leaving any of the listed countries, you can claim the withheld social security payments, except for Cuba and North Korea. However, we recommend you consult a tax professional concerning Social Security benefits. 

   When it comes to green card applications and naturalization, a reputable immigration attorney can guide you through the intricacies of the process, ensure you avoid time-consuming missteps, and provide knowledgeable advice on any required documentation. In addition, the green card and citizenship process is complicated and can be challenging if you have a spouse who passed away. An immigration lawyer can help relieve the burden of navigating the US immigration system alone. 

4. What’s in the news for 2023: An immigration outlook

   8:36 am Leave a Comment

   As COVID-19 slowly fades from the news headlines, immigration numbers are projected to continue to rebound in 2023. The Pew Research Center reports, “monthly encounters between US Border Patrol agents and migrants attempting to cross into the United States at the US-Mexico border remain at levels not seen in more than two decades, according to the latest available government statistics.” 

   However, the potential to improve immigration policies will be a challenge as Congress starts 2023 divided due to a Republican-led House of Representatives and a Democratic-led Senate. Looking ahead, here’s what we’re keeping an eye on for 2023. 

   Fee increases

   New USCIS application fee increases could take effect as early as May 2023. USCIS is required by federal law to review its immigration fee structure every two years, which could result in fee increases. However, new fee increases have yet to be introduced since 2016. USCIS relies heavily on filing fees for agency funding, and the cash-strapped agency is facing staffing challenges and increasing application backlogs. USCIS Director Ur Mendoza Jaddou has stated that the new fee structure could help the agency to manage the workload and improve customer service. 

   USCIS’s fee proposal, issued in the first week of January 2023, promises to keep costs low for low-income immigrants and naturalization applicants. However, the new fee structure will significantly increase costs for most employment-based visas, green card applications, and family-based visas. The proposed fee increases include the following:

   • 130% increase for green card applicants as the fee adjusts from $1,760 to $3,500
   • Removal of conditions application will increase by 76%, from $680 to $1,195
   • The fiance visa petition will increase by 35% from $535 to $720
   • A 19% increase for citizenship applications, from $640 to $760
   • Optional work and travel permit forms, which have been free as part of the green card application, will now incur separate fees.
   • Children’s applications will no longer be discounted. A US citizen sponsoring their spouse and two stepchildren could pay more than $10,000 for a marriage green card application.

   Before any fee increases can take effect, USCIS must follow the Administrative Procedures Act to enact any significant changes to its services and fee schedule. As part of the Act, a 60-day comment period must occur after publishing the proposed rule. After the comment period, USCIS can modify or withdraw the proposal. A final rule could be published as quickly as 30 days after the comment period. The USCIS fee schedule will only change once a final rule is ultimately published and goes into effect.

   DACA

   In October 2022, the Biden Administration issued a final rule to preserve and codify the Deferred Action for Childhood Arrivals (DACA) program. However, shortly after, a federal judge ruled that the program could temporarily continue, but new applicants could not apply. 

   The DACA program has faced legal challenges since its inception in 2012. A 2021 court ruling stated that the DACA program is unlawful because it was created as part of a memorandum written by former Department of Homeland Security (DHS) Secretary Janet Napolitano and not by the formal rulemaking process, which requires public “notice and comment.” 

   In 2022, the Biden administration revised the program by putting it through the formal rulemaking process to increase the odds of satisfying the legality concerns. Unfortunately, a federal apparel court affirmed the 2021 ruling but ordered a review of the program revisions. As of 2023, a date has yet to be set for additional hearings to confirm DACA’s future, long-term status.

   Currently, you are still eligible for DACA if:

   • You were granted DACA before the July 16, 2021, court decision
   • You continue to renew your DACA status on a timely basis. You may also request and receive advance parole.

   USCIS will continue to accept first-time applications for DACA and employment authorization, but the July 2021 court order prevents USCIS from processing or approving these applications. Filing despite the court order may be advantageous because applications will already be in UCIS’s system if the ruling changes.

   Title 42

   In December 2022, the Supreme Court ruled against the termination of Title 42. However, DHS from preparing for its eventual end with the return to processing noncitizens under Title 8. Under Title 8, those arriving at the border illegally can be removed without their case being decided by an immigration court. However, if a migrant wants to claim asylum, they are interviewed by an asylum officer before removal or deportation.

   Throughout the Biden administration, Title 42 has continued to be a cause for controversy. The Trump-era order was designed to prevent an influx of COVID into the US by making it easier to expel migrants at the border. Since then, the Biden administration has defended and used the order to deport more than 1 million migrants. The Biden administration has, however, been working to end it since 2022 and is preparing for the future of immigration after Title 42 in 2023.

   According to the Pew Research Center, “In the first months of the COVID-19 pandemic in the US, the Border Patrol relied heavily on Title 42 to expel most of the migrants it encountered at the border. But that pattern has shifted more recently under the Biden administration. In November 2022, about two-thirds of all migrant encounters (68%) ended in apprehension under Title 8, while around a third (32%) resulted in expulsion under Title 42.”

   New border enforcement actions released by the Biden Administration in January 2023 promise to improve border security, limit irregular migration, and create safe and orderly processes for people fleeing humanitarian crises. 

   The new measures include:

   • Allowing migrants from Nicaragua, Cuba, and Haiti to enter the US by air and remain for up to two years as long as they have a US citizen financial sponsor. A similar plan for Venezuelans was announced in October 2022, leading to a 90% drop in migrants arriving at the border.  
   • Quick deportations and a potential five-year reentry ban for those who enter illegally at the US-Mexico under Title 42.
   • Initially, for those seeking exceptions from Title 42, noncitizens can schedule appointments to present themselves at ports of entry through the CBP One mobile app.
   • Extending and improving expedited removal under Title 8 for those who cannot be processed under Title 42. These efforts include surging personnel and resources and enrolling individuals under the asylum processing interim final rule published in March 2022. 

   These new measures come at a time of 2 million illegal border crossings in 2022 and reports of record-breaking migrant deaths, many due to drownings. President Biden admits the changes won’t “fix our entire immigration system” and will need Congress’s help for a broader solution. 

   Public charge

   In early January 2023, the US Supreme Court denied an attempt to reinstate the 2019 revision of the public charge rule. The lawsuit by Arizona stemmed from the Biden administration’s decision to withdraw the rule in March 2021. Last June, the Supreme Court declined to take up a previous attempt to keep the rule intact. The 2023 Supreme Court decision could mean the end of further efforts to revive the Trump-era policy.

   Public charge, an immigration guideline determining whether people can be denied citizenship based on their likelihood to use government benefits in the future, was a contentious topic during the former Trump administration. An update to the public charge guideline went into effect on December 23, 2022, and impacts how USCIS officers adjudicate applications.

   Under the final rule, the federal government will only consider participation in the following as a public charge:

   • Cash assistance programs, including Supplemental Security Income (SSI), Temporary Assistance for Needy Families, and state, local, and Tribal cash assistance to pay for basic needs such as rent, food, and utilities. 
   • Long-term government assistance for institutionalization, including that provided in a nursing home or mental health institution. Long-term institutionalization at government expense would be the only category of Medicaid-funded services to be considered in public charge determinations. 

   All other benefits – including SNAP/food stamps, school lunch programs, WIC, rental assistance, healthcare, pandemic relief, unemployment benefits, and housing – are not considered in the public charge test and do not affect immigration applications.

   Inflation

   According to Commerce Secretary Gina Raimondo in an interview with Axios, the tight labor market is driving inflation, and an immigrant workforce could help ease the market pressure. An article in Foreign Affairs agrees, stating that US policymakers could “expand immigration for both skilled and less skilled workers to boost the supply capacity of the US economy. More immigration would help meet today’s excess labor demand, which would limit wage and price growth over time. In the short term, expanding the number of H-1B visas for skilled professionals and H-2B visas for seasonal nonagricultural workers would help employers overcome this acute labor shortage. In the longer term, doing so would also help cool inflation.” 

   Foreign Affairs authors also speculate that “expanding the H-1B and H-2B visa programs would immediately ease US labor shortages, which make it more costly to produce goods and provide services—cost increases that companies pass on to consumers in the form of higher prices. For decades, demand for H-1B visas has far exceeded supply. In the 2022 fiscal year, 308,613 people sought H-1B visas before the US government stopped accepting applications. The low cap on H-1B visas constrains not just the US labor supply but also US productivity growth.”

   There are no plans to increase employment-based visa caps in 2023. But, the proposed USCIS fee increases might help improve capacity, technology, and staffing, enabling faster processing times for current applicants. The agency aims to adopt new cycle times for processing cases in no more than six months by the end of the 2023 fiscal year.

5. Celebrating the New Year in the United States

   December 27, 2022 6:00 am Leave a Comment

   Since ancient Babylon 4,000 years ago, civilizations worldwide have celebrated the start of every year with New Year’s festivities. Historians believe that the Babylonians celebrated the New Year in late March with the beginning of the spring season. Today, most New Year’s celebrations begin on December 31, the last day of the Gregorian calendar. Common New Year’s traditions throughout the world include eating special foods, attending parties, and watching fireworks. 

   American New Year’s Eve traditions are a mix of practices brought over by immigrants settling in the new country as well as those that are uniquely American. 

   New Year’s Eve ball drop

   The most iconic New Year’s Eve tradition in the United States is watching a giant mirrored and illuminated ball drop in New York City’s Times Square. The tradition began in 1907 when the first New Year’s Eve ball, made of iron and wood and adorned with one hundred 25-watt light bulbs, was 5 feet in diameter and weighed 700 pounds. It was built by a young immigrant metalworker named Jacob Starr, and for most of the twentieth century, the company he founded, Artkraft Strauss, was responsible for lowering the ball. 

   Over time, the ball evolved to weigh nearly six tons and measure twelve feet in diameter. Over 2,600 Waterford Crystal triangles are illuminated by 32,256 Philips Luxeon LEDs. This big Times Square New Year’s Eve ball is now a year-round attraction sparkling above Times Square in full public view from January through December.

   According to Times Square, “The actual notion of a ball “dropping” to signal the passage of time dates back long before New Year’s Eve was ever celebrated in Times Square. The first “time-ball” was installed atop England’s Royal Observatory at Greenwich in 1833. This ball would drop at one o’clock every afternoon, allowing the captains of nearby ships to precisely set their chronometers (a vital navigational instrument).”

   Various towns and cities across America have developed their own versions of the Times Square ritual, organizing public drops of giant illuminated items representative of the town. Examples include:

   • A 16-foot tall and approximately 400-pound music note in Nashville, Tennessee
   • A 600-pound electric MoonPie replica, a popular American snack, in Mobile, Alabama
   • An 8-foot, 20-pound sardine sculpture in Eastport, Maine
   • A 4-foot, 9-inches tall, 400-pound lit PEEPS® Chick, a replica of a yellow chick-shaped marshmallow candy in Bethlehem, Pennsylvania
   • An 800-pound illuminated mushroom in Kennett Square, Pennsylvania
   • A 6-foot, 100-pound LED Fleur de Lis in New Orleans, Louisiana
   • A 10-foot-tall, 1,250-pound copper and steel acorn in Raleigh, North Carolina
   • An 800-pound, 8-foot-tall peach in Atlanta, Georgia
   • A 35-foot neon orange icon in Miami, Florida
   • A 17-foot illuminated potato in Boise, Idaho 

   Making New Year’s resolutions

   The ancient Babylonians celebrated the New Year by making promises to the gods to pay their debts and return any borrowed items, which could be considered the beginning of the New Year’s resolution tradition. 

   A New Year’s resolution is traditionally a commitment to accomplish a goal or break a habit. As the New Year begins, people reflect on the previous year and focus on improving themselves, hoping to change for good and achieve their goals. Making New Year’s resolutions is so ingrained in American culture that even the US government offers suggestions and resources for resolutions. However, research shows while as many as 45 percent of Americans say they usually make New Year’s resolutions, only eight percent are successful in achieving their goals. Regardless of the success rate, resolutions are about hopefulness for the future, living well, and being happy. 

   Some of the most common resolutions for Americans include:

   • Exercise more
   • Lose weight
   • Get organized
   • Learn a new skill or hobby 
   • Live life to the fullest
   • Save more money / spend less money
   • Quit smoking
   • Spend more time with family and friends
   • Travel more
   • Read more

   Eating for luck and prosperity

   In New Year’s celebrations around the world, special foods are eaten to bring luck, riches, love, and fortune. For example, in the southern states of America, many eat black-eyed peas, collard greens, rice, and ham or pork. These items are eaten on New Year’s Day with a strong belief that they will bring luck and prosperity. Some historians believe that this tradition was brought to America by enslaved people. 

   Additional New Year’s food traditions in other parts of the United States include slow-cooked pork and sauerkraut. This tradition is said to be brought by early Pennsylvania Dutch and German settlers. The pig represents good luck and success in the New Year, while the sauerkraut symbolizes a long life.

   Toasting to the New Year

   Toasting and drinking champagne on New Year’s Eve started in the 1800s, and by the end of the 19th century, it became an essential staple at all New Year’s Eve parties. Celebrating special events with champagne is a tradition that began in the 16th century among the elite European classes because champagne was so costly.

   By the end of the 19th century, a champagne toast on New Year’s Eve became an American standard primarily due to an upscale New York restaurant, Cafe Martin. The restaurant was opened in 1902 by two French brothers and boasted 62 varieties of champagne. Their business included importing champagne and was popular with the country’s upper class. On New Year’s Eve, the restaurant would only serve champagne after 9 pm, making the drink feel very exclusive, denoting the special occasion. The influence of the cafe was so absolute it even directed how champagne was marketed — as the upscale celebratory drink of choice. 

   Sending off the previous year with a bang

   Celebrating New Year’s with loud noises is a global tradition with fireworks displays, noisemakers, and banging pots and pans. In China, fireworks are set off to scare away evil spirits and to signal the start of a safe and prosperous new year. This tradition also crosses over into Europe and the United States, where loud noises push out any lingering evil spirits from the old year. 

   A more positive reason to make noise on New Year’s Eve comes from the traditional bell ringing. “Ringing in the new year” was a celebration marked by the ringing of bells for a variety of reasons. First, they were sounded to celebrate the new year and commemorate the old. Others, like the Japanese ring bells as a purification ritual for the coming year. On New Year’s Day, bells would ring to call worshippers to church for their first prayers and praise of the new year.

   Auld Lang Syne

   Another source of noise often associated with New Year’s Eve is the communal singing of Auld Lang Syne. The version Americans sing today is by Scottish poet Robert Burns, though there are also believed to be earlier versions. The song is mainly about having a drink and reminiscing about good times with friends. The song, written over two hundred years ago, became associated with New Year’s Eve in 1929 when Guy Lombardo and his band performed it on a national broadcast.

   Sharing a midnight kiss

   Sharing a kiss at midnight on New Year’s Eve is a popular American tradition that stems from the belief that it will ward off evil spirits and prevent loneliness in the next year. According to the Washington Post, the tradition comes from English and German folklore, which believed that it’s “the first person with whom a person came in contact that dictated the year’s destiny.” So choose your kissing partner wisely when the clock strikes midnight on New Year’s Eve!

    

6. 5 Options for H-1B workers recently laid off or fired

   December 16, 2022 6:00 am Leave a Comment

   Technology-based companies in the United States have continuously relied upon highly-skilled noncitizens to fill key technical roles. For example, among the most popular employers for H-1B visas, tech giants like Amazon, Microsoft, Apple, and Meta, increased their employee count during the COVID-19 pandemic as consumers spent more time online. However, despite the expectation for continued growth in online usage after the pandemic, many tech companies’ predicted revenues did not materialize, leading to massive layoffs.

   In one example, Meta (formerly known as Facebook), the sixth-largest sponsor of H-1B visas, laid off 13% of its workforce in November 2022. These layoffs create a domino effect for H-1B visa workers whose lives in the United States are closely tied to their employment status. 

   How H1-B visas work

   H-1B visas are temporary, nonimmigrant visas that permit highly educated foreign professionals to work in specialty occupations that require at least a bachelor’s degree or an equivalent. This visa category requires an individual to have sponsorship from their employer. Generally, an H-1B status lasts three years but can be extended for a maximum of 6 years. 

   When an employer lays off or fires an employee, the employer is generally required to file a withdrawal of the original work visa petition with US Citizenship and Immigration Services (USCIS), which will alert government officials that the visa holder is now out of status. After that, the employee has a 60-day grace period or before their I-94 expires, whichever comes first, to find a new employer who will renew or sponsor their H-1B. 

   The H-1B visa category requires the visa holder to be actively employed to maintain their lawful status. This same rule applies to most employment-based visas in the US, including visas in the L, O, H, and TN categories.

   Your options after losing employer sponsorship

   If you find yourself suddenly out of status, there are a few options available to you. We recommend first consulting a reputable immigration attorney. Knowledgeable immigration attorneys understand the importance of the 60-day deadline and can help avoid unnecessary delays, ensuring the best next steps for you and your family.  

   1. Find a new employer

   The most common path for an out-of-status H-1B visa holder is to find a new employer willing to sponsor their work visa status. You can port your current visa to your new employer if you can secure new employment within 60 days of becoming “out of status” or before your 1-94 expiration. 

   The portability provision preserves the legal status of an H-1B nonimmigrant already in the United States. Portability simplifies changing employers because you may not be required to apply for an entirely new H1-B. You can maintain your existing visa under a new sponsoring employer. Generally, the steps include the following:

   1. The new employer must file a Labor Condition Application (LCA) on your behalf. 
   2. Once the LCA is certified, the sponsoring employer can file Form I-129, Petition for a Nonimmigrant Worker with USCIS. 
   3. Once approved, your existing H-1B visa will “port” or transfer to your new employer. 

   The LCA must be approved before your grace period ends to ensure a smooth transfer of your H-1B. Once USCIS approves the I-129 petition, you may begin working under your new employer. 

   It’s important to note to stay and work in the United States legally, you must have proper work authorization. Working while physically present in the US – even for an employer in another country that pays you via a foreign bank account – still requires employment authorization by the US government.

   2. Transfer to a different type of visa 

   Depending on your eligibility, you can apply for a different type of visa and change your status. However, each visa type has its own eligibility requirements and application process, so it’s best to consult an immigration attorney. Additionally, unemployment benefits are not listed as public benefits under The US Department of Homeland Security’s (DHS) new public charge rules, so they will not affect your eligibility to extend or change your status.

   While USCIS is not guaranteed to approve your adjustment petition, you will maintain your status while it is processed. If USCIS denies your visa transfer request, you will have 30 days to leave the country, after which you will be considered to be in the US “unlawfully.”

   Common visa types to consider:

   • Tourist visa

   B-1/B-2 tourist visas may allow an individual to stay in the US for six more months. However, you must have a legitimate reason to adjust your status to a tourist visa. Applicants are not permitted to purposely pursue employment opportunities while on a tourist visa, or they may risk future visa denials. To request a status change, you will need to file Form I-539, Application to Extend/Change Nonimmigrant Status. 

   • Spouse-dependent visa

   An H4 visa is issued to a legally recognized spouse of a valid H-1B holder. The processing can take two to twelve months but provides the opportunity to obtain an Employment Authorization Document (EAD) granting permission to work in the US. This status generally applies to spouses of H1-B visa holders undergoing the employment-based green card process. 

   • Student-based visa

   Consider taking advantage of a career change to return to higher education and build new skills. If you’re interested in continuing your studies in the US, you can file Form I-539 to adjust to an F, M, or J student visa. To be eligible for a student visa, you must apply for and be accepted into an accredited academic or exchange program and have received a Form I-20 (for F/M visas) or DS-2019 (for J visas).

   • Treaty-trader and investment visas

   If you are a citizen of a country with which the US has a trade and investment treaty agreement, you may be able to consider an E-1 trader or E-2 investor visa. To be eligible for an E-1 visa, you must carry on substantial trade between the US and the treaty country. Items of trade include but are not limited to:

   • Goods
   • Services
   • International banking
   • Insurance
   • Transportation
   • Tourism
   • Technology and its transfer
   • Some news-gathering activities

   An E-2 investor visa requires a substantial investment in a US-based start-up or the purchase of a business. USCIS defines a substantial investment as

   • Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
   • Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
   • Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher proportionally the investment must be to be considered substantial.

   Another investment-based visa is an EB-5 Investor Immigrant Visa. The minimum investment required for EB-5 visa eligibility is $800,000 in a US-based business, and you must file the business plans with your visa application. In addition, the EB-5 program allows you to file for adjustment of status and receive work authorization while your application is pending.

   3. Obtain family or marriage-based visa sponsorship

   If you have an immediate family member who is a US citizen, they can sponsor you for green card status. To sponsor you, your family member must be a spouse, child over 21, parent, or sibling. In addition, you must prove your relationship through Form I-130, Petition for Alien Relative. You can learn more about this on the Family of US Citizens page on the USCIS website.

   If you are a fiancé or spouse with a US citizen or US green card holder, you can apply for an adjustment of status and obtain a marriage-based green card. Please note that marriage does not automatically grant US citizenship, and during the application process, you will need to prove to USCIS that the relationship is valid and genuine.

   There are different marriage-based visas depending on your current status as either fiancé or spouse. Before choosing which visa will work best for your situation, several factors must be considered. You can read more in our article, “Deciding between a fiancé or marriage-based visa.”

   If you have a US citizen spouse, it is possible to file for a marriage-based green card even if you’ve fallen out of status or remained in the US past the date of your I-94 expiration. This is because USCIS considers spouses “immediate relatives” of US citizens and therefore allows them to file Form I-485, Adjustment of Status, together with Form I-130, Petition for Alien Relative.

   4. Request asylum

   If returning to your home country is a threat to your safety, you may be able to apply for asylum. Asylum is a form of protection granted to individuals who can demonstrate that they are unable or unwilling to return to their home country because of persecution or a well-founded fear of persecution on account of:

   • Race, 
   • Religion, 
   • Nationality, 
   • Gender, 
   • Membership in a particular social group, 
   • Or political opinion

   You may apply for asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal to the US Citizenship and Immigration Services (USCIS). Please note if you are in the US past your 60-day grace period or I-94 expiration date and your asylum application is denied, you may be referred to immigration court for removal proceedings.

   5. Return to your home country

   If leaving the United States is the best course of action after your employment ends, speak with your company about travel and relocation expenses. In certain situations, your employer may be required to pay for a flight to allow you to return to your home country or your last country of residence. Once back in your home country, you may apply for re-entry to the United States with a new visa application. 

7. What are my rights at the US border?

   December 1, 2022 6:00 am Leave a Comment

   In March of 2021, Homeland Security Secretary Alejandro N. Mayorkas stated that the US was on pace “to encounter more individuals on the southwest border than we have in the last 20 years.” The detentions and arrests of undocumented immigrants in 2021 along the southern US border reached an all-time high of 1.9 million, with most arrests leading to deportation. 

   This year, in 2022, border crossings into the United States continue to increase due to violence, food insecurity, poverty, and a lack of economic opportunity in several countries in the Western Hemisphere, according to the Department of Homeland Security. Regardless of your immigration status or reason for entering the United States, you are entitled to certain rights when crossing the border. To understand your rights, you must first understand the agencies you will encounter at the border and beyond. 

   Who patrols the US borders?

   The US Customs and Border Protection Agency (CBP), a Department of Homeland Security branch, oversees trade and travel in and out of the United States. CBP’s Border Patrol agents inspect immigrants and cargo at ports of entry and patrol thousands of miles of the border. In addition to preventing the entry of terrorists and terrorist weapons, Border Patrol agents detect and prevent drug smugglers and the illegal entry of non-citizens.

   You will most likely encounter a Border Patrol agent at a US port of entry. A port of entry is where one may lawfully enter the nation. International airports are usually ports of entry, as are road and rail crossings on a land border and major seaports. US Customs and Border Protection enforces the import and export regulations and immigration programs of the US government. 

   Border Patrol agents may inspect your documentation, ask questions about your plans in the United States, and determine whether or not you are permitted to enter the country. Under CBP policy, agents are allowed to use force considered “objectively reasonable to affect an arrest,” taking into consideration whether a person poses a security threat or is resisting arrest. Excessive force by an agent is prohibited. 

   At airports, Transportation Security Administration (TSA) officers conduct security screenings. Most TSA officers are not commissioned law enforcement officers, and their role is to conduct screening of passengers, baggage, and cargo. TSA screeners can search you and your luggage at screening checkpoints, but they cannot arrest you. 

   TSA agents and Border Patrol are not active-duty military forces. The 1878 Posse Comitatus Act limits the US military’s role in enforcing domestic law, which includes immigration. As a result, it has been historically rare for US military forces to be sent to the border. In recent decades, their presence at the border has been limited to providing high-tech surveillance. US military forces can neither detain nor deport unauthorized immigrants nor conduct searches and seizures. 

   The 100-mile border

   US Customs and Border Protection is tasked with patrolling the US border and areas that function like a border. Their territorial reach includes a 100-miles radius from any external boundary of the United States. Under federal law, CBP can board vehicles and vessels “within a reasonable distance from any external boundary of the United States” and search for people without immigration documentation without a warrant. 

   A “reasonable distance” is 100 air miles for any external US boundary. Most of the ten largest cities in the US, such as New York City, Los Angeles, and Chicago, fall within this region. In addition, Florida lies entirely within this border. As part of its immigration enforcement efforts, CBP boards buses and trains in the 100-mile border region either at the station or while the bus is on its journey. More than one officer usually boards the bus, and they will ask passengers questions about their immigration status, request passengers to show immigration documents, or both. 

   CBP operates immigration checkpoints along the interior of the United States at both major roads — permanent checkpoints — and secondary roads — “tactical checkpoints”— as part of its enforcement strategy. At these checkpoints, every motorist is stopped and asked about their immigration status. Agents do not need any suspicion to stop and ask questions at a lawful checkpoint, but their questions should be brief and related to verifying immigration status. They can also visually inspect your vehicle. Some motorists will be sent to secondary inspection areas at the checkpoint for further questioning. 

   While the Fourth Amendment of the US Constitution prohibits random and arbitrary stops and searches, federal authorities do not need a warrant to justify a “routine search,” such as searching luggage or a vehicle. However, Border Patrol cannot pull over anyone without “reasonable suspicion” of an immigration violation or crime. An agent must have specific facts about you that make it reasonable to believe you are committing or have committed a violation of immigration or federal law. 

   Can my documents be taken away at the border?

   According to US Customs and Border Patrol policies regarding border searches, “When officers determine there is probable cause of unlawful activity, based on a review of information in documents or electronic devices encountered at the border or on other facts and circumstances, they may seize and retain the originals and/or copies of relevant documents or devices, as authorized by law.”

   In the absence of probable cause, “CBP may only retain documents relating to immigration matters, consistent with the privacy and data protection standards of the system in which such information is retained.” Under Federal laws, CBP may examine documents, books, pamphlets, and other printed material. If documentation, including your passport, is confiscated, it will usually be retained until the end of your immigration court case. 

   Your rights when crossing a US border 

   Generally, CBP officers may stop people at the border to determine if they are admissible to the United States, and they may search luggage and other belongings for contraband. This includes searching laptops and cell phones. However, officers may not select you for a personal search based on your religion, race, national origin, gender, ethnicity, or political beliefs. 

   If you are stopped at the border by a CBP agent or anywhere within the United States by Immigration and Customs Enforcement (ICE), you have certain rights and protections regardless of your immigration status:

   • You have the right to remain silent or request the presence of an attorney before answering any questions. However, if you do have permission to be in the US with a non-immigration visa, the law requires you to provide details about your immigration status when asked by authorities. 
   • If you are a lawful permanent resident (LPR), you only have to answer questions establishing your identity and permanent residency. Refusal to answer other questions will likely cause delay, but officials may not deny you entry into the United States for failure to answer additional questions.
   • An immigration officer cannot detain you without “reasonable suspicion.” You may ask the detaining officer their basis for reasonable suspicion. 
   • If you are not at a port of entry or US border, you cannot be arrested or searched without “probable cause” or your consent. The agent must have facts about you that make it probable that you are committing or have committed a violation of immigration or federal law. 
   • If you are told you cannot enter the country and fear you might be persecuted or tortured if you are sent back to the country you traveled to, you have the right to request asylum.
   • While CBP holds that primary and secondary inspections do not give you the right to an attorney, we recommend you request to contact a reputable immigration attorney if you feel your rights are being violated or if you have been detained for an unusually long period. 
   • If you are under arrest, or if it becomes clear you are suspected of committing a crime, you should ask to speak to a lawyer before answering any further questions — and if you wish to exercise your right to remain silent, you should say so out loud.
   • You have the right to wear religious head coverings during airport screenings. However, you may be subject to additional screenings if the body scanner triggers an alarm. In that case, you have the right to request that the pat-down or removal of your head covering be conducted by a person of your gender and that it occurs in a private area.

   Other important facts to keep in mind:

   • Customs Border Patrol agents can search without a warrant at ports of entry. However, ICE officers must have a warrant signed by a judge to enter your home. 
   • If you have entered the US without inspection by CBP or an immigration official, you may be subject to expedited removal from the US. However, expedited removal proceedings only apply if you have entered without inspection within the last 14 days or have been encountered by an immigration officer within 100 miles of the border. 
   • If your laptop or cell phone is confiscated at the border, according to CBP policy, they are not required to return your device before you leave the airport or other port of entry, and they might choose to send it off for a more thorough “forensic” search. Unless “extenuating circumstances” apply, they can keep your device for five days. However, the policy does not define ” extenuating circumstances, and the period can be extended to seven days.
   • If you leave the airport or other border checkpoint without your electronic devices, ask for a receipt, including information about your device and contact information, allowing you to follow up.

   What should I do if I’m arrested or detained at the border?

   If you are arrested or detained, meaning held in custody for a temporary period of time, you have the right to remain silent and to request to speak to a lawyer. 

   The following information may be helpful in this situation:

   • Do not sign anything without first talking to a lawyer.
   • Do not agree to a “voluntary departure” or agree to leave the United States without first talking to a lawyer. A voluntary departure removes your right to a court hearing and the risk of future barred entry to the United States.
   • Do not sign “stipulated orders of removal” without discussing with a lawyer. A stipulated removal order waives your right to a hearing and serves as a final order of deportation signed by a judge.
   • You have the right to call an attorney or your family if you are detained.
   • You have the right to be visited by an attorney if you are detained or in an immigration detention center. 
   • You have the right to an attorney, but the government will not provide you with one for free.
   • You have the right to contact your consulate. 
   • If detained, you have the right to ask to be released by paying a bond or for a bond hearing in front of a judge. A bond is money paid to the government that guarantees you will attend future court hearings. 

   In most cases, the immigration authorities have 48 hours to decide if you are to undergo immigration proceedings in front of a judge, to keep you in custody, or to release you on bond. If an immigration hearing is decided, you must receive a Notice to Appear within 72 hours with information regarding the hearing and your charges. 

   If you leave the US before your hearing, it’s essential to speak with an immigration attorney before departure. You may not be permitted back into the United States for several years if you leave. You may be arrested and barred indefinitely if caught entering the country before you’re allowed. 

8. The facts and myths about the Biden Administration’s proposed IDs for the undocumented

   November 30, 2022 5:30 pm Leave a Comment

   The Biden Administration has proposed an ID program for undocumented individuals arriving in the United States through Mexico’s borders. The program is part of an effort to modernize the documentation process for noncitizens, which hasn’t been updated since President Obama’s 2015 Presidential Memorandum, “Modernizing and Streamlining the US Immigrant Visa System for the 21st Century,” 

   Program participants will be able to expedite the immigration process by avoiding long lines for court hearings and having to register in person at government offices throughout the process. In addition, introducing a national identification system could simplify the current immigration system and improve communication between law enforcement, undocumented immigrants, and government officials. 

   Details of the ID card referred to as the ICE Secure Docket Card (SDC) has yet to be finalized, and the program still needs to be approved by Congress. Meanwhile, let’s explore the program in more detail to dispel a few myths.

   ICE secure docket card program overview

   According to an ICE spokesperson, the ICE secure docket card program is part of a pilot program to modernize various forms of documentation provided to noncitizens through a consistent, verifiable, secure card. The card, similar to a photo ID, will include the individual’s name, nationality, and a QR code for access to a portal with relevant immigration information. In addition, users can use the portal to update information and check in with federal authorities throughout their immigration cases or removal proceedings. 

   The secure docket card would allow authorities to verify whether an immigrant was released from custody “and/or charged as removable from the United States,” according to ICE. The Department of Homeland Security plans to pilot the SDC program by the end of 2023. However, for this to happen, the House and Senate would need to approve the program’s $10 million proposed budget, and a pilot notification requirement would need to be completed. 

   Four myths and four facts about the secure docket card program

   The proposed secure docket card program can offer many benefits to undocumented individuals, as well as state and federal governments. However, myths about the card could stand in the way of Congress approval. 

   Myth #1: The secure docket card will provide undocumented individuals with legal status.  

   The card does not provide individuals with the privileges of a documented citizen. The card is intended to ease the backlog of tracking individuals who have entered the country illegally and are undergoing removal proceedings. Only some apprehended noncitizens are held in a detention center under government custody. Migrants released from government custody still undergo immigration court proceedings to determine whether they can remain in the United States or be deported. 

   However, the process can take years and involves multiple check-ins with various immigration agencies. Currently, ICE is monitoring more than 300,000 migrants not held in detention centers through GPS ankle monitors, phones, or an app known as SmartLINK. 

   Myth #2: All undocumented individuals will receive the secure docket card. 

   Initially, the SDC will only be provided to migrants not in detention centers who illegally cross the US-Mexico border and are waiting for final decisions on their immigration cases. However, according to an ICE spokesperson, the agency could consider scaling up based on the pilot program’s success. 

   Myth #3: The secure docket card will grant voting access to noncitizens. 

   At the time of this article’s publication, there is no evidence that the cards could be used to obtain benefits or vote in US elections. The ID cards will not be considered federal forms of identification. Secure docket cards will not change the fact that only US citizens can vote in federal, state, and most local elections. Some states require voters to show identification to cast votes. Driver’s licenses are the most common form of identification, and less than 20 states currently provide driver’s licenses to undocumented immigrants. 

   Michelle Mittelstadt, Director of Communications at The Migration Policy Institute, told Reuters, “Considering noncitizens of all types are ineligible to vote in federal and state elections (and only in small numbers of municipal elections), and the proposed ICE secure docket card by its very nature would be given only to unauthorized immigrants in removal proceedings, it’s out of the question that any federal or state elections administrator would accept the ID as valid to establish voting eligibility.”

   Myth #4: The card will grant access to federal benefits. 

   Generally, undocumented immigrants are ineligible to receive federal public benefits, including the Supplemental Nutrition Assistance Program (SNAP), regular Medicaid, Social Security, healthcare subsidies, and Temporary Assistance for Needy Families (TANF). Obtaining the secure docket card will not grant access to any federal benefits. 

   Regardless of having a secure docket card, undocumented immigrants may be eligible for emergency medical assistance under Medicaid, specific public health programs, and disaster relief assistance. 

   Fact #1: The secure docket card supplements the Alternative to Detention program. 

   An Alternative to Detention (ATD) is a program that releases migrants from the custody of border agents and places them in a specific supervision program. Under current law, ICE “may or shall” release noncitizens on a case-by-case basis. Participants in this program often include unaccompanied minors, pregnant women, families with young children, and nursing mothers.

   The secure docket card will make it easier for immigrants to check their court dates and reply to immigration officials, a requirement for Alternatives to Detention programs. The SDC also provides a verifiable way for migrants to keep their contact information up-to-date, as failure to do so could result in immediate deportation. 

   Fact #2: The secure docket card will expedite access to public records. 

   The Freedom of Information Act (FOIA) allows individuals to submit a request to any federal government agency to obtain public record documentation about themselves or others. Immigration attorneys may often recommend a “FOIA request” if their clients have prior contact with immigration either at the border or through immigration court. Individuals can also submit requests for copies of their criminal records if they have been arrested.

   In immigration cases, FOIA requests are often made to the Department of Homeland Security (DHS) because DHS houses many other departments that interact exclusively with immigrants. A representative from ICE stated, “Moving to a secure card will save the agency millions, free up resources, and ensure information is quickly accessible to DHS officials while reducing the agency’s FOIA backlog.”

   Fact #3: The secure docket card could help undocumented individuals secure state benefits.

   State benefits like housing assistance, healthcare, and transportation often require some form of identification for eligibility. Individuals awaiting the outcomes of their immigration cases would benefit from having ID cards featuring their photos, biographical information, and other official security features. The cards have the potential to provide legal identification that will ease some of the burdens the individuals face daily while awaiting their case decision.

   Fact #4: ID programs for migrants are not a new concept. 

   The migrant ID program isn’t new; similar programs have been implemented locally for years. For example, New Haven, Connecticut, implemented a municipal ID program to resolve a theft problem in their city. Without proper ID, the undocumented were unable to open bank accounts. According to an article by PolicyLink, “As a result, they became frequent targets of theft because it was widely believed that they stored a large amount of cash either on at home or on their person.”

   PolicyLink also wrote, “When the state legislative effort to provide driver’s licenses to undocumented residents failed, New Haven’s Mayor John DeStefano launched a municipal ID initiative called the Elm City Resident’s Card in 2007. In just five months, the city issued more than 5,000 ID cards. By 2012, 10,000 residents had ID cards. Moreover, the resident card helped foster a sense of belonging and improved relationships between immigrants and law enforcement.”

   Several cities like Washington DC, Chicago, and San Francisco have similar programs. New York City has the largest local ID program. Called “ID NYC,” the ID is recognized as a valid form of identification by the police. It can also be used to open bank accounts and register for public benefits like health insurance. 

   The City of Chicago launched the City Key program to increase access to government-issued ID cards. Undocumented immigrants can acquire City Keys, establishing proof of identity in the City of Chicago. City Keys can be used to open a bank account at participating financial institutions, donate blood, rent apartments, apply for building permits, save money on medical prescriptions, ride public transportation, and more. 

   How the proposed secure docket program would work

   While there are no concrete details released yet, these are the guidelines some are speculating.

   • The card would feature the individual’s photo, biographic details, and official security features.
   • Each secure docket card would have a QR code that allows the immigrant to access court information and paperwork through an app. 
   • The ID card system would allow authorities to see which immigrants are asylum seekers. This lets those seekers prove that they are already in the immigration system.
   • ICE would give the cards to immigrants, not in detention centers, who illegally crossed the US-Mexico border or others going through the removal process.

   Advocates claim the secure docket card incentivizes immigrants to check in with officials more often to avoid waiting at physical ICE offices. It would also incentivize unauthorized immigrants to provide accurate information about their location. ICE is currently completing the required pilot notifications to Congress. An ICE spokesperson noted, “The details of the program are still being worked out, but the main goal of SDC is to improve the current inconsistent paper forms that often degrade quickly in the real world.” 

    

9. Making a career change as a new American

   October 31, 2022 6:00 am Leave a Comment

   Due to the competitive job market in the United States, some new Americans may seek a job in a field that’s different from the one they had in their native country. Making a career change in a new country can be challenging but it can also introduce you to new people and new languages that will help you grow personally and professionally. 

   While you may not have traditional job experience in the new role you are considering, there are still opportunities to leverage the soft skills and transferable skills you do have into a rewarding new career. Here are some tips to help make a successful career transition in the United States. 

   Set a goal

   There are many job opportunities available in the United States. It’s easy to apply to all the open positions with the hope that just one employer will take a chance on you. But that will not set you up for success in the United States. Understanding what type of career will make you feel satisfied and fulfilled will put you on the path to career advancement.

   Before you start applying, take the time to reflect on your past experiences, the industry you want to work in, and the skills you want to gain. If you don’t have defined career goals, determine what you want to accomplish in the long and short term. For example, if you have a goal to make a certain amount of money, you may want to focus on industries and positions that will get you closer to that goal. If there is an industry or position you’d like to transition into, research career training opportunities to help bolster your resume. 

   Highlight your soft skills

   Soft skills are non-technical skills that relate to how you work. They include how you interact with colleagues, solve problems, and how you manage your work. These skills are the easiest skills to transfer from role to role and industry to industry. Examples of soft skills are:

   • Problem-solving skills — You can solve issues quickly and efficiently. 
   • Emotional intelligence — The ability to gauge and manage your own emotions and build professional relationships. It influences how well you will interact with your colleagues and how will you manage stress and conflict.
   • Leadership skills — Leadership skills are skills you use when organizing other people to reach a shared goal. Good leaders increase employee engagement, support a positive environment, and help remove obstacles for their team.
   • Strong work ethics — An attitude an employee applies to their work that indicates a high level of passion for any work they do including arriving at work on time, completing tasks on schedule, and staying focused and organized. 
   • Teamwork — Even if you prefer to work alone, it is crucial that you appreciate and understand the value of working together and collaborating to accomplish the company’s objectives. 
   • Communication skills — Good communication involves listening and observing as well as talking. Employees with strong communication skills can mitigate a problem before it becomes a crisis.
   • Adaptability — Adaptability in the workplace means being flexible and able to change in order to become successful. You can manage unusual circumstances where there are no explicit instructions and have the confidence to make difficult decisions. As a newcomer to the United States, you have already proven your ability to adapt to new and uncertain situations. 

   The fact that you have a diverse background can add value to a US-based organization. Your willingness to live and work in a new country shows that you can adapt, be resilient, be open-minded, and view things from a different perspective. These are valuable skills for any new employee. 

   Show the numbers

   American employers appreciate seeing the numbers and data to back up your experience. Rather than simply listing out the duties you were responsible for in your past position, it is recommended to also highlight the results you achieved from your work. When switching industries, prospective employers may be more interested in the quantitative results than the process you followed. 

   Providing quantitative data on your resume is an effective way to emphasize your accomplishments in previous roles. In a competitive job market, it is important to make sure that you are giving yourself every available advantage. To create a list of accomplishments that are quantifiable and measurable, ask yourself the following questions:

   • How much did I make or save the company money? 
   • How much time did it take to reach my goals? 
   • To what degree did I exceed my goals?

   Think in terms of money and time. Dollar amounts, timespans, volume, and percentages are all great ways to quantify your accomplishments on a resume. If you are unsure of the exact number or dollar amount, consider using a range, for example, $3,000 – $5,000 or 3 – 5 hours. If your previous experience doesn’t involve dollar amounts, one of the easiest ways to add numbers to your resume is to quantify how frequently you performed a particular task. This is particularly helpful in illustrating your work in high-volume situations. Some examples of quantifying your experience are:

   • Within two months, set up and trained staff of 7 how to use the Jira platform to plan, track, and manage software development programs. 
   • Received two promotions from mid-level manager to director level in less than 18 months. 
   • Implemented a filing system for human resources, organizing more than 300 past and current employee documents. 
   • Increased shipping times by 90% by implementing an automated inventory and ticketing system. 
   • Decreased my packing time from 7 minutes to 3 minutes during my 4-year tenure and won “Employee of the Month” on two occasions.
   • Provided excellent table service to 50 patrons a night by maintaining knowledge of 120+ menu items, including beverages and wines. 
   • Reduced time spent on inventory by 20% by reorganizing the physical storage of supplies.
   • Reduced marketing spending by $35K by learning social media techniques instrumental in promoting company services.

   Bridge the gaps

   As with any job, it’s important to tailor your resume to match the job you are applying for. While you might not have experience in the new industry, you may need to show the hiring manager how your skills align with the requirements of the job. It could mean omitting on your resume the skills that aren’t applicable in your new industry, such as highly technical skills or specific pieces of software. Refer to the job posting, and if applicable, incorporate some of the words and phrases of the job description into your resume. 

   Also, keep in mind that the words you use in your resume should match how your job skills are described in America. For example, the role of an HR manager in Argentina could be different than in the United States. It’s also important to abide by any resume standards and expectations. For example, some countries may prefer a more detailed, two-page resume over a shorter, more concise document in the United States. Your resume needs to reflect not only the job you’re applying for but also the company’s cultural environment.

   Understand how the role translates in America

   You may encounter similar job titles in the United States, however, you might not realize that the roles can be quite different depending on the country. For example, the role of a Plant Manager in Japan doesn’t match what a Plant Manager does in the United States and the salary could be quite different than what you expect. 

   It’s a good idea to find out if any differences exist for you and whether you need to gain some additional skills or qualifications. The website O*NET sponsored by the US Department of Labor maintains a large database of job descriptions with similar job titles and can help provide a starting point in your research. 

   Focus on your matched qualifications

   Focus on your qualifications that match the job description by putting them first on your resume. You’ll want to draw attention to your experience which makes you an obvious fit for the job even with your less traditional experience. Then take inventory of your skills and abilities. These could be technical skills you are proficient in or soft skills that have helped you succeed. 

   If you are unsure that you have any matched qualifications but still feel you are a good fit for the job, think about the times you have won an award or received recognition at work. What skills, talents, or abilities helped you to excel? Drawing this connection for employers can help you write a relevant resume for the job you want. 

   Leverage your language

   Some employers may be interested in the specialist knowledge you didn’t know you had. Whether or not the position you are applying for requires your language skills, you can still convey the creative ways that your skills can benefit the company’s business goals. Add a language section on your resume that indicates how fluent you are in the languages that you can speak, read, and write in. If the job you are applying for is looking for a bilingual candidate, make sure the language section is located toward the top of your resume.

   Your native language can be extremely useful for employers who want to build relationships and expand into new markets. Also, being bilingual can allow you to form a vital part of a company’s growth strategy, whether it is trying to enter new markets on a national level or expand to other countries. And being bilingual is actually proven to make you smarter, as it makes you better at solving complex problems.

   Be flexible

   When making an international career move, it’s important not to get too fixated on a specific job title or an exact equivalent role in your new country. Employers may be hesitant to hire a candidate who has never worked for an American company. They may want to reduce your risk of failure by advising you to start at a lower position, giving you the best chance at success. By approaching this opportunity with an open mind, it could pay off in the long run. 

   To prove yourself in a new market, you may need to make a lateral move or a step backward, especially if your past experience involves managerial experience. Managing American teams is a different cultural experience and you may need time to adjust to the American work environment before you can take on a role managing a team.

   Final Thoughts

   Remember you should always check whether or not your visa or work permit limits your options for changing your career or even employer. Contact a reputable immigration lawyer or check with your employer or embassy on the legal work requirements in the United States. 

10. I received a notice to appear for a removal proceeding. Now what?

    October 28, 2022 1:55 pm Leave a Comment

    Deportation and removal proceedings occur when the US government orders a person to leave the country. According to the US Immigrations and Customs Enforcement (ICE) agency, approximately 186,000 individuals were deported in 2020, a 30 percent decrease from 2019. About 92% of removals were individuals convicted of a crime or pending criminal charges. 

    The most common reasons for deportation include the following: 

    • Violation of green card status terms
    • Marriage fraud
    • Is in the US without proper legal immigration status
    • Overstayed past visa expiration
    • Has been involved in criminal activity
    • They were inadmissible during adjustment of status or while entering the US

    Removal proceedings begin when you receive a Notice to Appear (NTA) from the US government. You have a right to a court hearing and the right to defend yourself against deportation at that hearing. If you or someone you know may be at risk for deportation, it’s important to understand the process and the options available for the best chance at a favorable outcome. 

    What does a “Notice to Appear” mean?

    A Notice to Appear contains a charge of removability and a list of allegations the government must prove. Typically, the Notice to Appear includes claims that you do not have valid immigration status or have done something to end your otherwise valid immigration status. 

    You must appear before an immigration judge who will hear the case against you. At this time, the US government must prove that the allegations against you are true, and the judge will decide whether to remove you from the United States or allow you to remain. However, you may be able to file a “motion to terminate.” A motion to terminate asks the court to dismiss the case if you can show that the government’s charges are substantively or procedurally defective. A motion to terminate may be filed as soon as the government files the Notice to Appear. 

    For some noncitizens, especially those arriving at the border without authority to enter the United States, deportation proceedings may begin while they are in a US Immigration and Customs Enforcement (ICE) detention center and without the benefit of legal counsel. They may be quickly deported or expelled from the United States by Department of Homeland Security (DHS) officials with a hearing or a judge ruling. 

    What should I expect during the removal hearing?

    The NTA may include a hearing date for when you must appear before an immigration judge. If you do not show up on that date, you will automatically be ordered for removal. This initial hearing is known as a master calendar hearing. During the hearing, the judge will allow you to admit or deny the charges against you. If you plead not guilty, the government must prove its charges against you. 

    Master Calendar hearings are generally quick. However, the judge may schedule an Individual or Merit hearing to allow the government more time to provide evidence that you are in the country illegally or to hear your evidence proving the opposite. The individual hearing is for the judge to consider all the evidence and arguments and to hear testimony from the respondent or other witnesses. Generally, at the end of the hearing, the judge will issue a decision and the reasons for either granting relief from removal or ordering removal. 

    If an immigration judge finds you removable but grants relief from removal, you can remain in the United States. On the other hand, if the judge finds you not removable or if the government fails to meet its burden of proof, your case will be terminated. A termination can be “with prejudice,” which prohibits the government from bringing the same removal case again, or “without prejudice,” which allows the government to file a new “Notice to Appear” and make a second attempt at removal.

    Am I eligible for “relief from removal?”

    Both you and the government have the opportunity to appeal the judge’s decision. If the judge ordered a removal, an appeal provides an automatic stay on the removal order, meaning that you cannot be removed while your appeal is pending. You must file an appeal within 30 days of the judge’s decision. You may be eligible to apply for “relief from removal.” Some forms of relief from removal include: 

    • Cancellation of Removal: An immigration judge can “cancel” the removal order and permit you to remain in the United States as a lawful permanent resident. To be eligible, you must either be a lawful permanent resident for at least seven years before undergoing removal proceedings or are undocumented and have been in the US for at least ten years. In this case, you must prove that your removal will cause “extreme and exceptionally unusual hardship” for a family member who is a US citizen or lawful permanent resident. 
    • Asylum: You have been granted asylum and cannot be returned to your former country due to a legitimate fear of persecution. 
    • Withholding of Removal: You are not qualified for asylum but cannot be returned to your former country because your life or freedom is threatened due to your “race, religion, nationality, participation in a social group or political opinion.”
    • Adjustment of Status: Obtaining lawful permanent resident status through an immigration judge since you are currently awaiting removal.

    Most forms of relief from removal also come with lawful status, such as a lawful permanent residence or asylee status. However, some forms of relief, such as withholding of removal, only provide limited protections from removal and do not grant any permanent lawful status.

    If an immigration judge finds you removable, denies relief from removal, and issues a removal order or grants voluntary departure at the end of the proceeding, you still have the right to appeal. A removal order is only considered final if the 30-day period to file an appeal has run out, or you waive the right to appeal. Some noncitizens are deported while they are still in the process of appealing.

    US immigration law also allows for administrative or judicial review of the final removal orders within 90 days of the ruling. During this time, a “motion to reopen” is permitted and can be filed with an immigration judge or the Board of Immigration Appeals (BIA), allowing you to present the court with new facts. The new facts must be supported by affidavits or other documentary evidence, and the information presented must not have been available at the time of the previous hearing.

    Some common grounds for reopening include the following:

    • A change in the conditions of your former country 
    • You are a survivor of domestic abuse
    • Your prior counsel was ineffective 
    • Your convictions were newly vacated
    • Recent circumstances that have changed your eligibility for relief
    • Recently issued case law has changed your removability or eligibility for relief

    A motion to reconsider asks the court to reconsider its decision. You may file a motion to reconsider if you can demonstrate that the court incorrectly applied law or policy or that the decision was incorrect based on the evidence in the record of proceedings at the time of the decision. A motion to reconsider must be filed within 30 days of the final ruling. 

    Are there other forms of removal proceedings?

    How long you’ve been in the country or if you’ve committed a criminal offense could affect your access to a hearing or options to apply for relief from removal. 

    Expedited removal

    Recent arrivals are usually subjected to a rapid “summary removal.” Immigrants apprehended within 14 days of entry into the US can be swiftly deported without a hearing under the expedited removal system unless they express fear of persecution in their former country. Similarly, individuals who have previously been deported can be subject to rapid “reinstatement of removal” if they cross the border again. An immigration judge does not have a role in the expedited removal process. Instead, an immigration officer decides whether the individual should be deported. It’s a quick process that may last only a few days.

    Criminal removal

    Some removal proceedings are initiated based on nonviolent or minor criminal convictions and labeled aggravated felonies under immigration law. The noncitizen is still entitled to a hearing with an immigration judge but may be barred from many forms of relief from removal. Most noncitizens begin removal proceedings after completing any criminal sentence they have served. However, a small number begin removal proceedings while still serving their criminal sentence through the Institutional Hearing Program (IHP). And, in some rare cases, federal judges issue an order of removal as part of a criminal sentence.

    Do I need a lawyer for my removal hearing?

    An experienced attorney can make the difference between remaining in the United States and being deported. Unfortunately, the immigration court will not appoint you a lawyer, leaving you to choose the best legal representation for your case. 

    A reputable immigration lawyer on your side can help translate the complex immigration system and represent you against the government attorneys representing USCIS, one of the best-resourced federal agencies. According to an American Immigration Council (AIC) study, individuals with legal representation are five times more likely to pursue relief from removal and five times more likely to win their cases.