U.S. Immigration Lawyers Serving Clients Nationwide

The U.S. Green Card Application Process

Green Card Eligibility and Required Documentation

The process of obtaining lawful permanent residence, commonly known as a Green Card, depends on the immigration category and the applicant’s individual circumstances. Green Cards may be available through qualifying family relationships, employment, humanitarian programs, and other categories established under U.S. immigration law.

In many family-based cases, the process begins when a qualifying U.S. citizen or lawful permanent resident files Form I-130, Petition for Alien Relative. Employment-based cases may involve Form I-140, Immigrant Petition for Alien Workers, as well as additional requirements depending on the particular employment-based category.

An approved immigrant petition does not necessarily mean that the beneficiary can immediately receive a Green Card. The applicant must also be eligible for permanent residence, and an immigrant visa must be immediately available when required by the applicable immigrant category and priority date.

Applicants generally obtain permanent residence through one of two procedures. An eligible person who is physically present in the United States may be able to apply for Adjustment of Status with USCIS using Form I-485. A person who will complete the process outside the United States generally proceeds through Consular Processing, which ordinarily involves the Department of State’s National Visa Center and a U.S. embassy or consulate abroad.

The evidence required varies substantially depending on the type of case. Family-based applications may require birth certificates, marriage certificates, divorce judgments, proof of U.S. citizenship or lawful permanent resident status, financial sponsorship documents, and evidence establishing the qualifying family relationship. Marriage-based cases also require evidence demonstrating that the marriage was entered into in good faith and not merely to obtain an immigration benefit.

Before filing a Green Card application, it is also important to identify issues that could affect eligibility. Prior immigration violations, unlawful presence, unauthorized employment, criminal history, fraud or misrepresentation, prior removal proceedings, previous immigration filings, and the manner in which the applicant entered the United States can significantly affect the appropriate strategy. Some applicants may require a waiver or another form of immigration relief before permanent residence can be approved.

Because the correct filing procedure and supporting evidence depend on the particular immigration category and the applicant’s history, Botelho Law Group evaluates each case individually before determining the appropriate path to permanent residence.

Conditional Green Cards and Removing Conditions on Residence

Certain marriage-based immigrants receive lawful permanent residence on a conditional basis for two years. This generally occurs when the marriage that formed the basis for permanent residence was less than two years old on the date the foreign national obtained lawful permanent resident status. A conditional permanent resident generally has the same rights and responsibilities as other lawful permanent residents, but must take additional steps to remove the conditions on permanent residence.

For marriage-based conditional residents, the conditions are generally removed by filing Form I-751, Petition to Remove Conditions on Residence, with U.S. Citizenship and Immigration Services (USCIS). When the spouses remain married and are filing jointly, Form I-751 generally must be filed during the 90-day period immediately before the second anniversary of the date conditional permanent residence was granted.

The petition should include evidence demonstrating that the marriage was entered into in good faith and not primarily for the purpose of obtaining an immigration benefit. Depending on the circumstances, evidence may include jointly filed tax returns, joint bank accounts, leases or mortgages, insurance policies, utility bills, photographs, evidence concerning children of the marriage, travel records, affidavits, and other documentation showing that the couple established a genuine marital life together.

A conditional resident may still be able to remove the conditions even when the spouses can no longer file jointly. Federal immigration law provides several potential waiver provisions, including circumstances involving termination of a good-faith marriage through divorce or annulment, battery or extreme cruelty, and certain cases involving extreme hardship. The appropriate waiver and supporting evidence depend on the individual circumstances of the case.

Failure to properly address conditional residence can have serious immigration consequences. If a required Form I-751 is not timely filed and USCIS does not excuse the late filing, conditional permanent resident status may be terminated and the individual may become subject to removal proceedings. Anyone approaching the expiration of a two-year conditional Green Card should therefore determine well in advance whether a joint petition or an appropriate waiver filing will be required.

Upgrading Family Petitions When a Permanent Resident Becomes a U.S. Citizen

A lawful permanent resident who files an immigration petition for a qualifying family member may later become a U.S. citizen while that petition is still pending or while the beneficiary is waiting for an immigrant visa. Naturalization can significantly affect the immigration process for certain family members.

For example, the spouse or unmarried child under 21 of a lawful permanent resident generally falls within a family-preference immigration category. If the petitioner becomes a U.S. citizen, a qualifying spouse or unmarried child under 21 may become an “immediate relative” of a U.S. citizen. Immediate relatives are not subject to the annual numerical limitations that apply to family-preference immigrant visa categories.

Naturalization can also affect petitions filed for sons and daughters, but the consequences depend on factors including the beneficiary’s age, marital status, country of chargeability, priority date, and applicable immigrant visa category. Becoming a U.S. citizen does not necessarily make every pending family immigration case faster, and in some situations a change in classification should be carefully evaluated before proceeding.

When a petitioner naturalizes while a family-based immigration case is pending, USCIS, the National Visa Center, or the appropriate U.S. consulate should be notified when applicable so that the petition and immigrant visa case can be reviewed under the correct immigration category.

Botelho Law Group assists lawful permanent residents and U.S. citizens with family-based immigration petitions, including evaluating how naturalization may affect a pending case and determining the appropriate next steps for the beneficiary.

Understanding Immigration Benefits and Eligibility

Who May Qualify for U.S. Immigration Benefits

U.S. immigration law provides many different ways for foreign nationals to live, work, study, or permanently reside in the United States. Determining which immigration benefit may be available depends on a person’s family relationships, employment, education, immigration history, manner of entry into the United States, humanitarian circumstances, and other individual factors.

Family-Based Immigration: U.S. citizens and lawful permanent residents may be able to petition for certain qualifying family members. The available immigration category and waiting period depend on the relationship between the petitioner and beneficiary, as well as whether the petitioner is a U.S. citizen or lawful permanent resident.

Marriage-Based Immigration: U.S. citizens and lawful permanent residents may petition for qualifying spouses. Depending on the circumstances, a foreign national spouse may pursue permanent residence through adjustment of status within the United States or immigrant visa processing through a U.S. consulate abroad. Fiancés of U.S. citizens may also qualify for a K-1 fiancé visa in appropriate cases.

Employment-Based Immigration: Foreign nationals may qualify for temporary employment visas or employment-based permanent residence based on factors such as their occupation, education, professional qualifications, extraordinary ability, investment, or sponsorship by a qualifying U.S. employer. Each employment-based category has different eligibility and filing requirements.

Humanitarian Immigration: U.S. immigration law also provides certain protections for individuals facing persecution, abuse, trafficking, or other qualifying humanitarian circumstances. Depending on the facts, potential immigration benefits may include asylum, protection under the Violence Against Women Act (VAWA), U visas, T visas, or other forms of humanitarian relief.

Removal and Deportation Defense: Individuals placed in removal proceedings may have defenses or forms of relief that could allow them to remain in the United States. Available options depend heavily on the person’s immigration history, family relationships, length of residence, criminal history, fear of returning to another country, and other circumstances.

Immigration eligibility is highly fact-specific. A person who appears eligible for an immigration benefit may also have issues involving unlawful presence, prior removal orders, criminal history, fraud or misrepresentation, unauthorized employment, or previous immigration violations that affect the appropriate legal strategy. For that reason, potential eligibility should be carefully evaluated before an application or petition is filed.

Citizenship and Naturalization

For many lawful permanent residents, naturalization is the final step in the U.S. immigration process. Naturalization allows an eligible lawful permanent resident to apply to become a United States citizen by filing Form N-400, Application for Naturalization, with U.S. Citizenship and Immigration Services (USCIS).

Many applicants become eligible for naturalization after maintaining lawful permanent resident status for at least five years. Certain lawful permanent residents who are married to and living in marital union with a U.S. citizen may qualify under a three-year rule if all applicable requirements are satisfied. Other naturalization provisions may apply in cases involving military service and certain other circumstances.

Eligibility for naturalization involves much more than simply possessing a Green Card for the required number of years. Depending on the basis for naturalization, applicants must satisfy requirements involving continuous residence, physical presence in the United States, residence within the applicable state or USCIS district, and good moral character. Most applicants must also demonstrate the required knowledge of English and U.S. history and government, although exceptions and accommodations may apply in qualifying cases.

Before filing an N-400, it is important to review the applicant’s entire immigration history. USCIS may examine prior immigration applications, lengthy trips outside the United States, tax history, criminal arrests or convictions, child-support obligations, Selective Service registration when applicable, prior marriages, and other matters relevant to eligibility. In some cases, applying for naturalization can bring attention to an underlying immigration issue that may affect not only citizenship eligibility but also the applicant’s existing lawful permanent resident status.

After Form N-400 is filed, USCIS may schedule biometrics if required and will schedule the applicant for a naturalization interview. During the interview, a USCIS officer reviews the application and the applicant’s eligibility for citizenship. Unless an exception applies, the applicant must also satisfy the applicable English and civics testing requirements. If USCIS approves the application, the final step is taking the Oath of Allegiance at a naturalization ceremony. The applicant becomes a U.S. citizen upon taking the Oath.

Botelho Law Group assists lawful permanent residents with evaluating eligibility for naturalization, preparing and filing Form N-400, identifying potential issues before filing, preparing for the USCIS naturalization interview, and addressing complications that may arise during the citizenship process.

Student and Exchange Visitor Visas

The United States offers several nonimmigrant visa classifications for foreign nationals who wish to study or participate in qualifying exchange programs. The appropriate classification depends on the type of educational or exchange program and the individual’s circumstances.

F-1 status is generally used by international students pursuing academic studies at qualifying U.S. schools, colleges, universities, seminaries, conservatories, and certain language-training programs. F-1 students must comply with requirements concerning enrollment and maintenance of status. Employment is restricted, although qualifying students may be eligible for certain forms of authorized employment or practical training, including Curricular Practical Training (CPT) and Optional Practical Training (OPT).

M-1 status is generally available for students pursuing vocational or other recognized nonacademic programs. M-1 students are subject to different rules concerning their studies, duration of status, and employment or practical training.

J-1 exchange visitor status applies to participants in approved exchange visitor programs and covers numerous categories, including certain students, scholars, trainees, interns, teachers, physicians, and other exchange visitors. Because J-1 programs have their own requirements, some participants may also be subject to the two-year foreign residence requirement depending on their particular circumstances.

International students and exchange visitors should carefully maintain their immigration status. Unauthorized employment, failure to maintain the required course of study, remaining in the United States beyond an authorized period, or other status violations can affect future immigration benefits. Students considering a change of status, employment-based immigration, marriage-based immigration, or permanent residence should evaluate how their current status and immigration history may affect the available options.

Temporary Work Visas and Employment-Based Immigration

U.S. immigration law provides numerous temporary and permanent immigration options for foreign nationals seeking to work in the United States. The appropriate category depends on factors including the type of employment, the worker’s qualifications, the employer, nationality in certain classifications, and whether the individual is seeking temporary status or permanent residence.

Temporary employment classifications include H-1B status for qualifying specialty occupations, L-1 status for qualifying intracompany transferees, O-1 status for individuals with extraordinary ability or achievement, E-1 and E-2 status for qualifying treaty traders and treaty investors, and TN status for qualifying Canadian and Mexican professionals, among other employment-based classifications.

Many temporary employment cases require a U.S. employer or other qualifying petitioner to file a petition with USCIS. Depending on the classification, additional requirements involving the U.S. Department of Labor or another government agency may apply. Approval of a petition by USCIS also does not necessarily constitute issuance of a visa; a foreign national outside the United States may need to complete visa processing through a U.S. embassy or consulate before seeking admission to the United States.

Employment-based permanent residence is a separate process from temporary work authorization. Depending on the immigrant classification, an individual may qualify for permanent residence based on extraordinary ability, an advanced degree or exceptional ability, a national interest waiver, professional or skilled employment, investment, or another employment-based immigrant category. Some cases require sponsorship by a U.S. employer and labor certification, while other classifications may permit qualifying individuals to petition for themselves.

Because employment-based immigration involves numerous classifications with substantially different requirements, determining the appropriate strategy requires an individualized evaluation of the foreign national’s qualifications, employment, immigration history, and long-term objectives.

The U.S. Citizenship and Naturalization Process

Steps in the Naturalization Process

Once a lawful permanent resident determines that they are eligible to apply for U.S. citizenship, the naturalization process generally begins by filing Form N-400, Application for Naturalization, with U.S. Citizenship and Immigration Services (USCIS). The application requires detailed information concerning the applicant’s immigration history, residences, employment, travel outside the United States, family history, taxes, criminal history, and other matters relevant to eligibility.

1. Review Eligibility Before Filing. Before submitting Form N-400, applicants should carefully evaluate whether they satisfy the applicable requirements for naturalization. Particular attention should be given to continuous residence, physical presence, good moral character, lengthy trips outside the United States, criminal history, taxes, Selective Service registration when applicable, and the manner in which lawful permanent residence was originally obtained.

2. Prepare and File Form N-400. The naturalization application should be completed accurately and consistently with the applicant’s prior immigration filings. USCIS may review information contained in earlier petitions and applications, so discrepancies involving addresses, employment, marriages, children, travel, immigration history, or other material information should be identified and addressed before filing.

3. Biometrics and Background Checks. After filing, USCIS may require the applicant to attend a biometrics appointment or may reuse previously collected biometrics. USCIS conducts the required background and security checks as part of the naturalization process.

4. Attend the Naturalization Interview. USCIS will schedule the applicant for an interview with an immigration officer. The officer reviews the N-400, verifies the applicant’s eligibility, and may ask questions about immigration history, travel, taxes, family relationships, criminal history, and other matters contained in the application.

5. Complete the English and Civics Requirements. Unless an exception applies, naturalization applicants must demonstrate an ability to read, write, speak, and understand basic English and must demonstrate knowledge of U.S. history and government through the applicable civics examination. Certain applicants may qualify for exemptions or accommodations based on age, length of permanent residence, disability, or other qualifying circumstances.

6. Receive a USCIS Decision. Following the interview and examination, USCIS may approve the application, continue the case to request additional evidence or testing, or deny the application. If additional evidence is requested, it is important to respond completely and within the deadline provided by USCIS.

7. Take the Oath of Allegiance. An approved applicant does not become a U.S. citizen merely because Form N-400 has been approved. The naturalization process is completed when the applicant takes the Oath of Allegiance at a naturalization ceremony. Upon taking the Oath, the applicant becomes a United States citizen and receives a Certificate of Naturalization.

Criminal History and U.S. Citizenship

A criminal record does not automatically prevent every lawful permanent resident from becoming a U.S. citizen. However, arrests, criminal charges, convictions, probation, incarceration, and other criminal conduct can significantly affect eligibility for naturalization and should be carefully reviewed before Form N-400 is filed.

Naturalization applicants are generally required to establish good moral character during the applicable statutory period before filing and through the administration of the Oath of Allegiance. USCIS may also consider conduct occurring before the statutory period when evaluating an applicant’s present moral character.

The immigration consequences of a criminal case depend on much more than whether the case appears on a criminal record or whether the applicant believes the matter was dismissed. The specific criminal statute, the charge, the final disposition, the sentence imposed, the date of the conduct, and the applicant’s complete immigration history may all be important.

Certain criminal convictions or conduct can create statutory bars to establishing good moral character. Other offenses or conduct may prevent an applicant from establishing good moral character during the applicable statutory period. The immigration consequences of a criminal matter can be very different from its consequences under state criminal law.

Criminal history can also raise an issue beyond whether an applicant qualifies for citizenship. In some cases, a prior conviction or other conduct may raise questions concerning whether the individual was properly admitted for lawful permanent residence or whether the individual may be subject to removal from the United States. Filing an N-400 gives USCIS an opportunity to review the applicant’s immigration history and record, which is why potentially serious issues should be identified before applying.

Applicants should disclose criminal history accurately as required by Form N-400, including matters that may have occurred many years ago. When appropriate, certified court dispositions, police records, sentencing information, and other documentation may be necessary to determine the immigration consequences of a prior case.

Before filing for naturalization, Botelho Law Group can review an applicant’s criminal and immigration history to determine how a prior arrest, charge, conviction, or other conduct may affect eligibility for U.S. citizenship and whether filing Form N-400 could create additional immigration risks.

Protecting Asylum Seekers and Refugees

Applying for Asylum in the United States

Asylum is a form of humanitarian protection available to certain individuals who are physically present in the United States or who arrive in the United States and are unable or unwilling to return to their country because of persecution or a well-founded fear of future persecution.

To qualify for asylum, the feared persecution generally must be connected to at least one of five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group. Establishing that connection—often referred to as the “nexus” requirement—is a critical part of an asylum case.

Asylum applications are generally submitted using Form I-589, Application for Asylum and for Withholding of Removal. In most cases, an applicant must file for asylum within one year of the date of the applicant’s last arrival in the United States. However, federal immigration law recognizes certain exceptions based on changed circumstances or extraordinary circumstances. Whether an exception applies is highly dependent on the facts of the individual case. USCIS continues to recognize the one-year filing requirement and these statutory exceptions.

The procedure for deciding an asylum application depends in part on whether the individual is applying affirmatively or is already in removal proceedings. Certain applicants pursue affirmative asylum through USCIS, while individuals in removal proceedings may seek asylum and related protection before an Immigration Judge. The appropriate procedure depends on the applicant’s immigration and procedural history.

A successful asylum claim frequently requires much more than completing Form I-589. Evidence may include a detailed declaration from the applicant, witness statements, medical or psychological evidence when applicable, police or government records, news reports, human-rights documentation, and evidence concerning conditions in the applicant’s country of nationality or last habitual residence.

Applicants with pending asylum cases may also become eligible to seek employment authorization under applicable federal rules. Because the rules governing asylum-based employment authorization, filing fees, and asylum procedures can change, applicants should determine the requirements that apply at the time of filing rather than relying on outdated timelines or instructions.

A person granted asylum may eventually be eligible to apply for lawful permanent residence if the applicable requirements are satisfied. Asylum can also provide a basis for certain qualifying family members to obtain derivative immigration benefits.

Refugee Status and U.S. Refugee Resettlement

Refugee status and asylum provide related forms of humanitarian protection, but they involve different procedures. In general, a refugee is a person seeking protection from outside the United States, while an asylum applicant seeks protection after arriving in or being physically present in the United States.

Refugee admission to the United States involves a separate overseas screening and resettlement process. Eligibility depends on U.S. refugee law, applicable government programs and policies, security screening, admissibility requirements, and the individual’s circumstances.

Refugee processing should not be confused with filing an affirmative asylum application with USCIS or seeking asylum as a defense to removal in Immigration Court. Although both forms of protection are based on fear of persecution, the procedures for obtaining protection are substantially different.

Individuals who have already been admitted to the United States as refugees have additional immigration requirements and may later seek lawful permanent residence when eligible under federal immigration law.

Fiancé and Spouse Visa Applications

Marriage-Based Green Cards and K-1 Fiancé Visa

U.S. citizens and lawful permanent residents may be able to help qualifying spouses obtain lawful permanent residence in the United States. The appropriate process depends on several factors, including whether the petitioner is a U.S. citizen or lawful permanent resident, whether the couple is already married, where the foreign national is currently located, how the foreign national entered the United States, and the individual’s prior immigration history.

For married couples, the process generally begins with Form I-130, Petition for Alien Relative, which establishes the qualifying family relationship. A foreign national spouse who is eligible to apply for permanent residence from within the United States may be able to pursue Adjustment of Status through USCIS. A spouse completing the immigration process abroad generally proceeds through Consular Processing, including processing through the National Visa Center and a U.S. embassy or consulate.

U.S. citizens who are engaged to a foreign national may also consider the K-1 fiancé visa. The U.S. citizen generally begins the process by filing Form I-129F, Petition for Alien Fiancé(e). If the K-1 visa is issued and the foreign fiancé is admitted to the United States, the couple must marry within 90 days of admission. The foreign national spouse may then apply for adjustment of status based on the marriage to the U.S. citizen who filed the fiancé petition. USCIS confirms this basic K-1 process and the 90-day marriage requirement.

Choosing between a fiancé visa, marriage-based consular processing, and adjustment of status should be based on the couple’s particular circumstances. Processing location, immigration history, prior marriages, previous petitions, criminal history, financial sponsorship requirements, and possible grounds of inadmissibility can all affect the appropriate strategy.

Marriage-based immigration also requires evidence that the marriage is genuine and was not entered into primarily to obtain an immigration benefit. Evidence may include joint financial records, shared residence, insurance, photographs, travel, communications, evidence concerning children, affidavits, and other documentation demonstrating the couple’s relationship and shared life together.

Botelho Law Group represents couples throughout the marriage and fiancé immigration process, including I-130 petitions, K-1 fiancé petitions, adjustment of status, consular processing, USCIS interviews, Requests for Evidence, Notices of Intent to Deny, and other complications that may arise during the case.

Financial Sponsorship and Potential Immigration Issues

Family-based immigration cases may involve financial sponsorship requirements. Depending on the immigration process, a qualifying sponsor may be required to submit an Affidavit of Support demonstrating sufficient financial resources under the applicable federal requirements. Household size, income, assets, joint sponsors, and other factors may affect whether the financial sponsorship requirements are satisfied.

Marriage and fiancé cases can also become significantly more complicated when there are prior immigration violations, unlawful presence, previous removal proceedings, criminal history, prior marriages or immigration petitions, fraud or misrepresentation, or other potential grounds of inadmissibility.

An inaccurate statement or omission in an immigration application can have serious consequences, but not every mistake automatically constitutes immigration fraud or willful misrepresentation. The circumstances, the information involved, its materiality, and the applicant’s knowledge and intent may all be relevant. Potential misrepresentation issues should therefore be evaluated individually rather than assuming that every incorrect answer produces the same immigration consequence.

In some cases, an applicant who is otherwise inadmissible may qualify for a waiver or another form of immigration relief. Eligibility depends on the particular ground of inadmissibility and the requirements established by federal immigration law. When a potential problem exists, identifying it before the immigration interview or final adjudication can be extremely important.

Confronting Deportation and Removal

Defenses and Relief in Removal Proceedings

Removal proceedings can have serious consequences, including deportation from the United States and possible restrictions on returning in the future. However, being placed in removal proceedings does not necessarily mean that an individual has no options to remain in the United States. Depending on the circumstances, one or more forms of relief or defenses may be available before the Immigration Court.

Adjustment of Status: Certain individuals in removal proceedings may be eligible to obtain lawful permanent residence based on a qualifying family relationship, an approved immigrant petition, or another available basis for adjustment of status. Eligibility depends on the individual’s immigration history, manner of entry, visa availability, admissibility, and the Immigration Court’s jurisdiction over the application.

Cancellation of Removal: Certain lawful permanent residents and certain nonpermanent residents may qualify for cancellation of removal if they satisfy the specific statutory requirements. For nonpermanent residents, those requirements generally include at least ten years of continuous physical presence, good moral character during the required period, the absence of specified disqualifying criminal convictions, and proof that removal would cause exceptional and extremely unusual hardship to a qualifying U.S. citizen or lawful permanent resident spouse, parent, or child. Cancellation of removal is discretionary, meaning that satisfying the statutory requirements does not automatically guarantee relief.

Asylum, Withholding of Removal, and Protection Under the Convention Against Torture: Individuals who fear returning to another country may have potential claims for humanitarian protection. The legal standards and eligibility requirements for asylum, withholding of removal, and protection under the Convention Against Torture are different, and the availability of each form of protection depends on the facts of the individual case.

Waivers and Other Forms of Relief: Depending on the grounds of inadmissibility or removability involved, an individual may qualify for a waiver or another form of relief under federal immigration law. Other cases may involve issues concerning the validity of the charges in the Notice to Appear, eligibility for voluntary departure, or other procedural or substantive defenses.

Termination or Dismissal of Proceedings: In appropriate circumstances, there may be a legal basis to seek termination or dismissal of removal proceedings. Whether this is available depends on the procedural posture of the case, the charges alleged by the Department of Homeland Security, applicable law and policy, and any immigration benefits or other relief available to the respondent.

Botelho Law Group represents individuals in removal proceedings by evaluating the charges and immigration history, identifying potential defenses and forms of relief, preparing applications and supporting evidence, appearing before the Immigration Court, and advising clients regarding available options throughout the removal process.

Immigration Court Hearings and Appeals

Removal cases are generally heard by Immigration Judges within the Executive Office for Immigration Review (EOIR), an agency within the U.S. Department of Justice. The Department of Homeland Security ordinarily prosecutes the government’s case, while the respondent has the opportunity to contest the charges and seek any relief for which they may be eligible.

Removal proceedings may involve multiple hearings. At a master calendar hearing, the Immigration Judge generally addresses preliminary matters, pleadings to the allegations and charges, representation by counsel, potential forms of relief, filing deadlines, and scheduling. When an application for relief requires a full evidentiary hearing, the court may schedule an individual or merits hearing at which testimony, documentary evidence, witnesses, and legal arguments may be presented.

Individuals in removal proceedings have the right to be represented by an attorney or authorized representative at their own expense. Immigration Court proceedings can involve complicated evidentiary requirements, filing deadlines, procedural rules, and questions concerning eligibility for relief, making preparation particularly important.

If an Immigration Judge issues an unfavorable decision, the individual may have the right to appeal to the Board of Immigration Appeals (BIA). Strict filing deadlines generally apply. Depending on the circumstances and procedural history, additional review or relief may also be available through motions to reopen or reconsider or through review in the appropriate federal court.

Every removal case is different. The available strategy may depend on how and when the individual entered the United States, current immigration status, family relationships, pending or approved immigration petitions, length of residence, criminal history, prior immigration proceedings, fear of returning to another country, and other circumstances.

Criminal Records and Immigration Consequences

What Counts as a Conviction for Immigration Purposes?

Criminal charges and convictions can have serious consequences under U.S. immigration law. Depending on the circumstances, a criminal matter may affect eligibility for a visa, lawful permanent residence, naturalization, asylum, or other immigration benefits. Certain criminal offenses may also expose a noncitizen, including a lawful permanent resident, to removal proceedings.

Immigration law uses its own federal definition of a “conviction.” A formal judgment of guilt entered by a court generally constitutes a conviction for immigration purposes. However, a case may also qualify as a conviction when adjudication of guilt has been withheld if the individual entered a guilty or no-contest plea, admitted sufficient facts to support a finding of guilt, or was found guilty, and the court imposed some form of punishment, penalty, or restraint on liberty.

As a result, a criminal case that a person believes was “dismissed,” continued without a finding, deferred, expunged, or otherwise resolved without a traditional judgment of conviction may still have immigration consequences. The terminology used by a state criminal court does not by itself determine how federal immigration law will treat the disposition.

The immigration consequences of a criminal case also cannot be determined simply by asking whether the offense was classified by the state as a misdemeanor or felony. Immigration law contains its own categories and definitions, including crimes involving moral turpitude, aggravated felonies, controlled-substance offenses, firearms offenses, domestic-violence-related offenses, and other grounds that may affect admissibility or removability.

Determining the immigration consequences of a criminal case may require review of the exact criminal statute, charging documents, plea, court disposition, sentence, and other parts of the record of conviction. Small differences in the statute or disposition can sometimes produce very different immigration consequences.

Anyone with a criminal history should have the immigration consequences evaluated before filing an immigration application whenever possible. Filing an application with USCIS, applying for naturalization, traveling internationally, or seeking admission to the United States can sometimes bring an existing criminal immigration issue to the attention of federal immigration authorities.

Waivers and Relief for Criminal Immigration Issues

A criminal record does not necessarily mean that every immigration benefit is unavailable. Depending on the particular offense, immigration benefit being sought, family relationships, immigration history, and other circumstances, an individual may qualify for an exception, waiver, or another form of immigration relief.

The availability of a waiver depends on the specific ground of inadmissibility or removability involved. There is no general immigration waiver that simply erases a criminal conviction. Some grounds may be waivable under particular provisions of federal immigration law, while others may have very limited waiver options or may not be waivable in the particular immigration proceeding.

In cases where a waiver is available, eligibility may depend on factors such as the nature and date of the offense, qualifying family relationships, hardship to qualifying relatives, rehabilitation, length of residence in the United States, and the particular immigration benefit being requested. The requirements vary considerably depending on the waiver or form of relief involved.

Post-conviction relief obtained in criminal court can also present complicated immigration issues. Vacating, modifying, or expunging a conviction does not automatically eliminate the conviction for immigration purposes. The reason for the post-conviction action and the legal basis upon which the criminal court acted may be critical in determining whether immigration authorities will continue to recognize the original conviction.

Because criminal and immigration law intersect in complex ways, Botelho Law Group evaluates the criminal record together with the client’s complete immigration history before determining the potential immigration consequences and available strategies.

After Receiving a Green Card or Immigrant Visa

Entering the United States With an Immigrant Visa

An individual who receives an immigrant visa through a U.S. embassy or consulate must generally use that visa to seek admission to the United States before the visa expires. Upon arrival at a U.S. port of entry, U.S. Customs and Border Protection (CBP) will inspect the traveler and determine whether the individual is admissible to the United States.

If admitted as an immigrant, the individual generally becomes a lawful permanent resident upon admission. The physical Permanent Resident Card, commonly known as a Green Card, is subsequently produced and mailed to the U.S. address provided for that purpose, assuming the applicable USCIS immigrant fee and other requirements have been satisfied.

New lawful permanent residents should carefully review their immigration documents for accuracy and maintain copies of important immigration records. They should also understand the requirements for maintaining permanent resident status, including the potential consequences of extended travel or residence outside the United States.

Social Security Numbers and Other Post-Arrival Steps

Some immigrants may request a Social Security Number as part of the immigrant visa process and may receive their Social Security card after admission to the United States. Individuals who do not receive a Social Security Number through that process may need to contact the Social Security Administration and provide the required identity and immigration documentation.

A Social Security Number is commonly used for employment, tax reporting, banking, credit, and other financial or administrative purposes. However, a Social Security Number does not itself establish lawful immigration status or provide immigration benefits.

After becoming a lawful permanent resident, individuals should also keep USCIS informed of address changes as required, maintain copies of immigration records, understand the rules concerning international travel, and determine when they may become eligible for U.S. citizenship through naturalization.

Lawful permanent residents who plan to spend significant periods of time outside the United States, who have unresolved criminal or immigration issues, or who believe information on their immigration documents is incorrect should consider obtaining legal advice before taking actions that could affect their permanent resident status.

Frequently Asked Questions About U.S. Immigration Law

Can an immigration lawyer represent me if I live in another state?

Yes. Because U.S. immigration law is primarily federal law, Botelho Law Group represents immigration clients throughout the United States. Depending on the type of case, our attorneys can assist clients with USCIS petitions and applications, consular processing, waivers, naturalization, asylum matters, and representation in U.S. Immigration Court.

How can I get a Green Card in the United States?

There are several potential paths to lawful permanent residence, commonly known as obtaining a Green Card. A person may qualify through a family relationship, marriage to a U.S. citizen or lawful permanent resident, employment, certain humanitarian programs, or another immigration category.

Some applicants may be eligible to apply for Adjustment of Status from within the United States, while others must complete immigrant visa processing through a U.S. embassy or consulate abroad. Eligibility depends on the applicant’s individual circumstances, including immigration history, manner of entry, family relationships, criminal history, and any potential grounds of inadmissibility.

Can I get a Green Card through marriage to a U.S. citizen?

Marriage to a U.S. citizen can provide a basis for lawful permanent residence, but marriage itself does not automatically provide a Green Card. The couple must establish a legally valid, good-faith marriage and satisfy the other requirements of U.S. immigration law.

Depending on the circumstances, the foreign national spouse may be able to apply for Adjustment of Status from within the United States or may need to complete Consular Processing abroad. Prior immigration violations, unlawful entry, unlawful presence, criminal history, fraud or misrepresentation, and previous removal proceedings can affect eligibility and should be evaluated before filing.

What is the difference between Adjustment of Status and Consular Processing?

Adjustment of Status is the process through which an eligible person who is physically present in the United States applies for lawful permanent residence without completing the immigrant visa process abroad.

Consular Processing generally applies when a person completes the immigrant visa process outside the United States through the Department of State, the National Visa Center, and a U.S. embassy or consulate.

The correct process depends on the person’s location, manner of entry, immigration status and history, immigrant visa availability, and other eligibility requirements.

Can a U.S. citizen bring a fiancé to the United States?

A U.S. citizen may be able to petition for a foreign fiancé through the K-1 fiancé visa process. The process generally begins by filing Form I-129F, Petition for Alien Fiancé(e).

If the K-1 visa is approved and the foreign fiancé is admitted to the United States, the couple generally must marry within 90 days of the fiancé’s admission. The foreign national spouse may then apply for Adjustment of Status based on the marriage to the U.S. citizen petitioner.

Whether a K-1 fiancé visa or marriage followed by immigrant visa processing is the better strategy depends on the couple’s particular circumstances.

How long does it take to get a Green Card or other immigration benefit?

There is no single processing time for U.S. immigration cases. Processing times can vary substantially depending on the immigration benefit requested, the government agency or office handling the case, visa availability, the applicant’s immigration history, requests for additional evidence, background checks, interviews, and other circumstances.

Because government processing times and immigration policies change, applicants should review current information for their particular immigration category rather than relying on a general estimate.

Can I become a U.S. citizen after receiving a Green Card?

Many lawful permanent residents become eligible to apply for naturalization after five years of permanent residence. Certain lawful permanent residents who are married to and living in marital union with a U.S. citizen may qualify under a three-year rule if all applicable requirements are satisfied.

Naturalization eligibility involves additional requirements, including continuous residence, physical presence, good moral character, and, for most applicants, English and U.S. civics requirements. An applicant’s immigration and criminal history should be reviewed before Form N-400 is filed.

Can I apply for U.S. citizenship if I have a criminal record?

Possibly. Having an arrest or criminal record does not automatically prevent every lawful permanent resident from becoming a U.S. citizen. However, criminal history can affect the good moral character requirement and may reveal other immigration consequences.

The effect of a criminal matter depends on factors including the criminal statute involved, disposition of the case, sentence, date of the conduct, and the person’s immigration history. In some cases, filing for naturalization may cause USCIS to examine an underlying issue that could affect the applicant’s existing permanent resident status. Criminal and immigration records should therefore be carefully reviewed before filing Form N-400.

Can I apply for asylum in the United States?

A person who is physically present in or arrives in the United States may be eligible to apply for asylum if they meet the requirements under U.S. immigration law. Generally, the applicant must establish past persecution or a well-founded fear of persecution connected to race, religion, nationality, political opinion, or membership in a particular social group.

Asylum applications are generally subject to a one-year filing deadline calculated from the applicant’s last arrival in the United States, although certain changed-circumstance and extraordinary-circumstance exceptions may apply. Asylum eligibility is highly dependent on the particular facts and evidence of each case.

What should I do if I am placed in Immigration Court or removal proceedings?

A person who receives a Notice to Appear or is placed in removal proceedings should determine what charges the Department of Homeland Security is alleging and whether any defenses or forms of relief may be available.

Depending on the circumstances, potential options may include Adjustment of Status, Cancellation of Removal, asylum, withholding of removal, protection under the Convention Against Torture, certain waivers, voluntary departure, or other forms of relief. The available options depend on the person’s immigration history and individual circumstances.

Can I get a Green Card while I am in removal proceedings?

In some cases, yes. A person in removal proceedings may potentially qualify for Adjustment of Status based on an approved or approvable family-based or employment-based petition or another basis for permanent residence.

However, eligibility and which agency has jurisdiction over the Adjustment of Status application depend on the circumstances. A pending or approved I-130 petition does not automatically terminate Immigration Court proceedings or guarantee that Adjustment of Status will be granted.

Can a criminal conviction cause deportation or prevent me from getting a Green Card?

Certain criminal convictions and criminal conduct can have serious immigration consequences. Depending on the offense and circumstances, a criminal matter may affect admissibility, eligibility for permanent residence or citizenship, or expose a noncitizen—including a lawful permanent resident—to removal proceedings.

Immigration law uses federal definitions that do not always correspond with how a state classifies a criminal case. A case described under state law as dismissed, deferred, expunged, or resolved without a traditional conviction may still have immigration consequences in some circumstances.

Do I need an immigration lawyer to file with USCIS?

Federal law does not generally require a person to hire an attorney simply to submit an immigration application or petition. However, immigration cases can involve legal issues that are not apparent from the forms themselves.

An immigration attorney can evaluate eligibility before filing, identify potential immigration or criminal issues, determine the appropriate immigration strategy, prepare applications and supporting evidence, respond to Requests for Evidence or Notices of Intent to Deny, prepare clients for interviews, and represent clients when complications arise.

What happens if USCIS sends me a Request for Evidence or Notice of Intent to Deny?

A Request for Evidence (RFE) generally means USCIS requires additional evidence before it can make a decision on an application or petition. A Notice of Intent to Deny (NOID) generally means USCIS has identified reasons it believes the case may not be approvable and provides an opportunity to respond before a final decision is issued.

Both notices should be taken seriously. The response deadline and the specific issues identified by USCIS should be carefully reviewed, and the response should directly address the government’s concerns with appropriate evidence and legal arguments when necessary.

How can Botelho Law Group help with my immigration case?

Botelho Law Group represents individuals, families, employers, and businesses in U.S. immigration matters nationwide. Our immigration practice includes family-based immigration, marriage-based Green Cards, Adjustment of Status, Consular Processing, fiancé visas, waivers, citizenship and naturalization, asylum, employment-based immigration, and removal and deportation defense.

Our attorneys evaluate each client’s immigration history and goals, identify potential problems before filing whenever possible, prepare petitions and applications, respond to USCIS requests and notices, prepare clients for immigration interviews, and represent individuals in Immigration Court proceedings.

Speak With a U.S. Immigration Lawyer

Immigration cases can have life-changing consequences, and the correct strategy depends on the specific facts of your case. Whether you are seeking a Green Card, U.S. citizenship, a family or fiancé visa, employment-based immigration, asylum, a waiver, or representation in removal proceedings, Botelho Law Group can evaluate your immigration history and help you understand the options that may be available.

Immigration Representation Nationwide

Because immigration law is federal, Botelho Law Group represents immigration clients throughout the United States. Our attorneys assist individuals, families, employers, and businesses with matters before U.S. Citizenship and Immigration Services (USCIS), the Department of State and U.S. consulates, and the U.S. Immigration Courts.

Contact Botelho Law Group

Contact Botelho Law Group to schedule a consultation regarding your U.S. immigration matter.

Botelho Law Group PLLC
901 Eastern Avenue
Fall River, Massachusetts 02723
Phone: 508-500-1551

BOTELHO LAW GROUP