Page Two of Immigration Law for Immigration Lawyers and Serious Readers!

CRIMINAL ISSUES: We are often asked by our clients what the difference is between being inadmissible and deportable. Someone who is in this country, under certain circumstances can be asked to leave, and that is deportation. Someone who is outside this country trying to enter could be inadmissible (previously called excludable). This means that if you have a Green Card, each time you re-enter the country you are seeking admission. If you have a criminal record, it could prevent you from entering. It that is the case with you call us immediately, especially if you intend to travel. The same rule applies to people who are Entering Without Inspection (EWI); these people are subject to all of the laws of admissibility.

This area of the law can be quite complex. For example, if you left America but did not enter a new country, you are not seeking readmission (let's say you rented a boat and left the continent but only went fishing). Another example is a person who leaves America but for some reason is not admitted to Canada, that person has not left the United States and therefore does not seek readmission, avoiding the triggers of a person seeking readmission.

There are many grounds of inadmissibility and they include (these are the ones we are called about the most):

1. Health related grounds (mental retardation was removed as a ground in 1990), as well as grounds based on:

2. Vaccinations;

3. Physical and mental disorders;

4. Drug abusers and addicts
(note: single use of Marijuana or amphetamines does not count/you don't have to be an addict to be disqualified here). These persons do not have waivers available if this section applies to them;

5. Someone likely to become a public charge (this is why Affidavits of Support are important);

6. People who have committed a crime of Moral Turpitude (unless it is for a petty offense [maximum penalty is one year in prison AND you were not sentenced to more than 6 months]). The petty offense exception does not apply if you committed more than one offense or if it applies to a drug-related case;

7. Drug-related offences. If they believe or know that you are a trafficker in any controlled substance or has reason to believe you are or were as assister, abettor, conspirator or colluder in trafficking. A conviction is only necessary if they use the "reason to believe" part of the statute. Also, if you are the spouse, son or daughter of someone inadmissible for trafficking, you too are inadmissible if in the last 5 years you had any financial or 'other' benefit from the trafficking and knew or reasonably should have known the benefit was due to the activity;

Waivers are available under certain circumstances for 30 grams or less or marijuana. Foreign convictions require mental intent but American ones do not.

8. Two or More Offenses. However convicted, if the aggregate conviction is for 5 years or more of confinement, even if suspended, brings you into this section;

9. Persons ordered Removed. If you have been deported or leave while deportation is pending, you face 10 years away unless you have permission to re-enter sooner from the AG (Attorney General). The case you file is a 212 waiver (please do not simply fill out the form without a legal brief. This is the legal equivalent of open-heart surgery and should not be attempted as a do-it-yourself exercise);

10. People who have overstayed by 6 months or 1 year; they are subject to 3 and 10-year bars, respectively (this law took effect April 1st of 1997). This section kicks in, by the way, once you leave the country;

11. If you are granted VD and do not leave, you will be in a state of unlawful presence as of the date the VD expires and you add on any unlawful presence you had before the VD. However, if you are granted VD after proceedings began, you will not be subject to the 3-year bar, but will be subject to the 10-year bar;

INADMISSIBILITY

12. People who evaded the draft cannot receive citizenship;

13. If you claimed to be a U.S. citizen and were not, you are inadmissible. However, we have won a case where the person mistakenly thought he was a citizen so you have to remember that while no waiver is available, you still must have committed the offence in order for it to be held against you;

14. If you voted and couldn't, you are inadmissible, no matter how strongly you felt about the candidate;

15. International Child Abduction. Watch this one. If the judge ruled your x-spouse has custody and you take the child, this is a serious problem for you;

As you have learned, many grounds allow for waivers (or forgiveness) but you have to file a very serious and difficult case. The form is I-601 is for all grounds of inadmissibility. If you have a criminal record, they will want your fingerprints, a form called G325A and a police report from all countries in which you have lived. Lastly, they want to see that you have rehabilitated and don't come to the U.S. to continue a life of crime!

It is harder and harder to get away with anything as the government has several systems in place that can share information. The USCIS has a computer system called NAILS (National Automated Immigration Lookout System) as well as IBIS (Interagency Border Inspection System). The State Dept. has AVLOS (Automated Visa Lookout System) and CLASS (Consular Lookout and Support System). Customs has TECSII (Treasury Enforcement Communications System). Who thinks of all these acronyms...is one person with a full-time job??

EXPEDITED REMOVAL

I wrote about this earlier. If you want to try it out, simply forget your Green Card or your NIV (Nonimmigrant Visa) documents. Another way to do it is to make a material (=important/but the definition is subject to legal interpretation) misrepresentation unless you are seeking asylum or fear persecution or terror. Other exceptions include natives or citizens of Cuba, and a few others. You will be facing detention.

And by the way....if you have a Green Card and a criminal record, left the country and were let back in...the government can still get rid of you based on a previous criminal conviction even if they let you in...

And still on the topic of criminal behavior....a conviction includes pleading nolo (nolo refers to the Latin term Nolo Contendre or "no contest"=you caught me with my hand in the cookie jar and I don't really have a good answer for you). Suspended sentences are still considered final convictions. However, a conviction is only considered where it is final, not for example where it is kept 'on file'. KEY: Let's say you have a drug conviction. Let's say they stated you had 30 grams of Marijuana (MJ) and you state and had witnesses to prove you had 5. The conviction will not count for 30 but for what the evidence actually showed, ( i.e. not what you were charged with).

Expungements by the way, from State courts, do not count for immigration purposes. [Matter of Roldan, 22 I&N Dec 512 (BIA 1999)]; foreign expungements do not count either. Full and unconditional pardons by the President, State Governor, or other constitutionally recognized executive body can help with crimes of moral turpitude, multiple convictions, aggravated felonies and high-speed flight from a USCIS checkpoint.

KEY: If you have your plea or sentence vacated, then it can be erased for immigration purposes. If you have a criminal record, call us so we can discuss the particulars of the conviction and ascertain whether help is available; you have nothing to lose by asking; there is no charge for this type of evaluation by phone.

RE-ENTRY AFTER DEPORTATION

We receive a lot of calls on this one. If you were excluded, deported, removed, or even denied admission, do not re-enter. Likewise, if you left on your own accord while a deportation, exclusion or removal order was in process, you could face 2 years and a $1,000 fine. And if this was after you had committed 3+ misdemeanors that involved drugs, crimes against persons, or any combination, or a felony, it is 10 years. If, after an aggravated felony 'AF' (careful, the list of what is considered AF is growing), then it is 20 years. However, you cannot be charged under this section (8USC § 1326) unless you were physically deported. But, they can actually get you for making an entry past the 12-mile limit! If you are just trying to make an attempt in front of an officer, then that is different.

And...if you're the hunter-type and have firearms..and are here illegally, you cannot possess one. Period. If you use someone else's social security card, it is a ground of deportation and five years of prison can await you. 42 USC §408(a)(7)(B). And of course you Green Card holders know that under 8 USC §1304(e) it is a misdemeanor not to keep a Green Card with you at all times...guess what...these offenses can lead to inadmissibility. And finally, those of you who think you can marry someone for immigration in order to walk easy street, not only is marriage fraud a deportable offense, but you face imprisonment of up to five years, a fine of $250,000 PLUS alimony! For your first offense. 18 USC §1325(c).

NONIMMIGRANTS:

If you apply for a change of status or extension of status you will be considered here legally until a determination is made as long as you did not work without authorization, and filed a timely, legitimate case. Even if it takes the government more than 120 days to approve the case, you do not start the clock for unlawful presence (i.e. the 3 and 10-year bar issues). However, if the case is denied, unlawful presence begins as of the date of the expiry of the last I94 you had--double edged sword! However, the good news is that only occurs if your case was frivolous (many asylum cases), untimely, or if you worked without authorization. Also, if you didn't do one of those three things, and depart during a Change (one visa to another) or Adjustment (to Green Card) of Status case, you will not be subject to the 3/10 -year bars.

F and J persons often have visas with a stamp called D/S which stands for "Duration of Status". These people do not accrue unlawful presence unless a Judge or the USCIS has determined that the Duration ended. Interestingly, this rule applies to Canadians who cross the border but not offered I94s (keep your evidence to prove what you say about the date of entry is true).

If you file for Change of Status, you are not in unauthorized stay as long as your case has not been decided and you did not work without authorization. In other words, you are in authorized stay until your case is decided. Say you enter on a B-1 visitor for business or B-2 visitor for pleasure. You file a nonfrivolous case for an extension before the first stay expired. Of course, your I94 has expired and it has been 3 months since you heard from the USCIS. You are considered to be in authorized stay. This is the case, even if it takes them more than 120 days (I will explain the 120-day rule shortly). BUT if the case is ultimately denied, your unlawful presence starts from when your I94 expired so be very careful it does not exceed six months (3-year bar kicks in. But, you may have trouble entering again anyway as they are not crazy about overstays! BUT that only applies if it was frivolous, not filed on time or because you worked without authorization, otherwise you are fine and presence starts when the original case is denied. If you were a D/S (duration of status, such as F or J visa) then it only starts when the case is denied, EVEN if denied for being frivolous, untimely or due to unauthorized employment.

As to the 120-day rule, 8 USC (United States Code....the federal laws) Section 1182(a)(9)(B)(iv) states that the 3-year bar timeline is tolled for 120 days if you were lawfully paroled (they let you in) or admitted (you gained a status) , filed a legitimate case before your status expired, and did not work without authorization. There are arguments both ways as to whether the case should ultimately be approved or not.

KEY: The bars do not count the time cumulatively. In other words, if you stayed 3 months this year and 3 months next, they are not added together.

KEY: Waivers are available under INA 212(d)(3)(A).

IMMIGRANTS

If you received your Green Card through marriage or the million-dollar investment section (EB-5), and do not file the I751 (marriage) or I829 (investment) form as you should (because your Green Card is considered conditional), unlawful presence accrues. However, if the government accepts a late filing (have a lawyer help in this case, perhaps a brief in support of why), then you are back in status and there is no unlawful presence.

The filing of 245(a) or (i) Adjustments of Status and Section 249 Affirmative Registry applications do not lead to unauthorized stays and are actually considered a period of stay authorized by the AG (Attorney General) , even if your I94 date has passed. For example, if you marry a U.S. citizen and your stay ends January thirtieth yet you file a case to Adjust Status and wait a year, you will still be fine. However, do not step foot outside the country. KEY: If you had an unlawful stay before filing the case, it applies toward the 180-365 day overstay situation. Once you file your case, though, you are authorized until your case is approved, denied, renewed or appealed at the BIA (Board of Immigration Appeals) level. KEY: Appeals filed at the at Federal Court to not stay the time. This section does not apply to children and spouses who are subject to battery or extreme cruelty and you can show a relationship between your stay and the cruelty.

If you file for Adjustment of Status, you are not in unauthorized stay as long as your case has not been decided and you did not work without authorization. In other words, you are in authorized stay until your case is decided. Say you enter on a B-1 visitor for business or B-2 visitor for pleasure. You file a nonfrivolous case for an extension before the first stay expired. Of course, your I-94 has expired and it has been 3 months since you heard from the USCIS. You are considered to be in authorized stay. This is the case, even if it takes them more than 120 days (I will explain the 120-day rule shortly). BUT if the case is ultimately denied, your unlawful presence starts from when your I-94 expired so be very careful it does not exceed six months! BUT that only applies if it was frivolous, not filed on time or because you worked without authorization, otherwise you are fine and presence starts when the original case is denied. If you were a D/S (duration of status, such as F or J visa) then it only starts when the case is denied, EVEN if denied for being frivolous, untimely or due to unauthorized employment.

As to the 120-day rule, 8 USC (United States Code....the federal laws) Section 1182(a)(9)(B)(iv) states that the 3-year bar timeline is tolled (=stopped) for 120 days if you were lawfully paroled (they let you in) or admitted (you gained a status) , filed a legitimate case before your status expired, and did not work without authorization. There are arguments both ways as to whether the case should ultimately be approved or not.

KEY: The bars do not count the time cumulatively. In other words, if you stayed 3 months this year and 3 months next, they are not added together.

KEY: Waivers are possible if you are the an immigrant and the spouse or son/daughter of a citizen and can show extreme hardship. For example, your spouse is a citizen, your children are the step-children of a citizen and they qualify to make this argument. It is called a 601 waiver (please do not simply fill out the form without consulting a lawyer; a legal brief can make all the difference in the world).