DERIVATIVE CITIZENSHIP - are you a citizen and you don't even know it?

Derivative Citizenship is citizenship that you gain after your birth, through the naturalization of one of your parents.  This is different from citizenship by descent which you acquire at birth and can be conferred to you, even if you were born outside of the U.S.  Let me warn you that in certain situations, depending on (1) when you were born, (2) when your parent(s) naturalized and (3) how hold you were when your parent(s) naturalized, there is a very complicated CHART involved in figuring out whether or not you can claim derivative US citizenship and what you need in order to prove your eligibility.  I am going to talk about the most simple situations in this blog. 

The current law that governs this is called the Child Citizenship Act (CCA) and came into effect on 2/26/01.  The CCA allows certain children of American citizens to get American citizenship automatically. These children did not acquire American citizenship at birth, but rather are granted it following their parents' naturalization.  Under the CCA, you can automatically acquire US Citizenship on the date that all of the following requirements are met:

• At least one parent is a US citizen, whether by birth or naturalization
• You are under age 18
• You are currently residing permanently in the US in the legal and physical custody of a US citizen parent
• You are a lawful permanent resident

Those simple requirements are ONLY for people who were under 18 at the time CCA went into effec (i.e. 02/27/01).  If you were OLDER than 18 on that date, then you do NOT qualify for automatic citizenship, but rather you are subject to the chart I mentioned above and would have to file an application to prove your eligibility.  Now that being said, even if you do fall under all of the requirements above - you effectively have NO proof of your citizenship because all you have is a green card and the knowledge that you fulfill all the requirements on the list.  IF you want proof of your citizenship on PAPER, you need to either (1) apply for a US Passport or (2) file Form N-600, Application for Certificate of Citizenship.  In my experience, I find that it is more effective to file the N-600 before trying to get your passport.  Despite the fact that the law is clear on this matter and you are, under the law, a US Citizen, most passport offices will not approve your passport application without a Naturalization Certificate. 

As stated above, if you were over 18 at the time CCA was enacted, all is not lost, you simply need to seek the advice of a competent immigration attorney who can determine your eligibility and what you will need to prove your derivative citizenship.  In your case, you will have to file an N-600 with documentary evidence of your derivative citizenship.  That evidence varies depending on when you were born and when your parent became citizens. 

Naturalization/DACA workshop this weekend sponsored by the Office of Samoan Affairs in Carson, CA

I will be attending the event below.  I will be providing information and assitance with Deferred Action for Childhood Arrivals (DACA) applications, as well as consultations regarding eligibility for permanent residency. 

 

Naturalization (Citizenship) Workshop

Saturday, Dec. 8, 2012

9:00 a.m. – 2:00 p.m.

Office of Samoan Affairs

20715 So. Avalon Blvd, (2^ndFloor)

Carson, CA 90745

Citizenship – DACA– One Parent National Law

FREE APALC Consultation Service includes:

ü Check your eligibility for citizenship

ü Consultation on eligibility issues

ü Help completing your naturalization application (U.S. Nationals/Permanent Residents-Green Card Holders)

ü Pre-Screen individuals if qualify for FEE WAIVER for

application

ü Help preparing for your citizenship interview and exam

ü “Self-filing” your application with USCIS

For More Information & to make a consultation appointment:

(you will be provided with a list of documents to bring with you

during your appointment).

Call Kawen T. Young at 310-766-3196 or 310-516-8312

 

Preserving your status as a "child" for immigration purposes

In 2002, Congress passed the Child Status Protection Act (CSPA), changing who can be considered a "child" for immigration purposes.  Before 2002, when a child turned 21 he/she was no longer eligible to immigrate with his/her parents - regardless of how long they may have been waiting.  This would mean that parents would get their residency and immediately turn around and petition for the children who had "aged-out," which resulted in their now adult children being basically kicked to the back of an even longer line than the one they had been waiting in with their parents.   

With the enactment of CSPA, children who had "aged-out" are, in some circumstances, allowed to remain children (i.e. under 21) for immigration purposes.  The "circumstances" I am referring to can often be complex and vary depending on the type of petition, who was petitioning, and the preference category.  The most common situation is the one I described above, where a parent is the direct beneficiary to a non-immediate relative petition, and the child is a "derivative" - i.e. the petition wasn't filed specifically for them, but the mere fact that they are the child of the principal beneficiary (their parent) makes them eligible to be attached to the application.  ** Please note: by non-immediate relative, I mean that the person who filed for the parent was not their: (1) USC spouse or (2) over 21 USC child - in those cases, there are NO derivatives allowed.  Often times, the parent has to wait months or even years for their petition to be approved and in that time, their derivative child turns 21.  Through CSPA, those months/years that they had to wait for their approval can be subtracted from the child's age and if after the math, the child is under 21, then they can immigration with their parents.  This basically ensures that kids are not punished for how long it takes USCIS to process a petition. 

Until a recent 9th Circuit Court of Appeals decision, this calculation, called an automatic conversion was only allowed in situations where the original petition was an F2A petition - meaning it was filed by a resident spouse or parent.  So, in situations where a US citizen brother or sister applied for a person, a child who was a derivative on that petition could not subtract the time it too that petition to be approved from their age.  In September, the 9th Circ. in De Orosorio v. Mayorkas, held that the plain language of CSPA provides automatic conversion and to aged-out beneficiaries in all family based categories.  So that means, if your mom's sister filed for her waaaay back when, and you were under 21 at the time, depending on how long it too for that petition to be approved, you may still be under 21 for immigration purposes and you could possibly get your green card too. 

Other things can freeze someone's age under 21 as well.  For example, if a resident father files for his son and then becomes a US citizen before that son turns 21 - his age is frozen under 21 and the petition his father filed becomes an immediate relative petition - i.e. it is immediately available for use - no waiting in line for your date to come up. 

There are also this which make someone INELIGIBLE for CSPA.  For example, if you are the derivative on your mom's petition from your resident grandfather.  The petition takes several years to be approved, and then several more for the priority date to become current.  If in that time YOU get married, even if the automatic conversion would have worked to freeze your age under 21, your marriage rendered you ineligible to make use of it. 

In addition to the above scenarios, there are a MULTITUDE of other situations which can arise which may affect your eligibility in both positive and negative ways - including things your parents may have done while waiting for their petition to be approved that can affect you and your eligibility to "ride" on that petition.  That being said, as always, you need to seek out competent legal advice.

Getting Rid of Your Criminal Conviction

As I pointed out in my last blog, the crossover between immigration and criminal law is one of the most complex areas of law today.  Non-citizens facing criminal charges risk not only criminal consequences such as imprisonment or fines; they also risk the severe consequence of deportation or removal from the United States.  It is imperative, that non-citizens have criminal counsel that understands both criminal law and immigration law in order to ensure that the conviction or plea is not going to have a devastating effect on their immigration status. 

In this installment, I want to talk about the most common motions for post-conviction relief here in California.  First, is the motion to vacate a conviction based on the fact that you did not get the proper advisals from the court at the time you pled to the crime.  This falls under California Penal Code sec. 1016.5 which, in summary, states that as part of taking a person's plea, the court must state:

 

"If you are not a citizen, you are hereby advised that conviction
of the offense for which you have been charged may have the
consequences of deportation, exclusion from admission to the United
States, or denial of naturalization pursuant to the laws of the
United States."

If the court did not state that advisal exactly as it is worded above, or in a way that included; deportation, exclusion from admission, or denial of naturalization; you can go back to court and have their conviction vacated.  With that being said, the ENTIRE criminal file must be reviewed by an attorney to determine if the court gave the advisal - it is NOT enough that you think the judge never said that.  Also, in many instances, these convictions are very old and the criminal files have been partially or completely destroyed.  An attorney must review the documents so that they can ascertain if you have enough (or in some cases if enough has been destroyed) to make an argument for vacature. 

Second, and MARKEDLY more difficult, is a motion to vacate based on the fact your previous defense ATTORNEY did not give you the proper advisals before taking a plea.  This motion is based on a decision from the US Supreme Court, Padilla v. Kentucky.  In that case, the Court found that no criminal defendant, whether a citizen or not, should be left to the “mercies of incompetent counsel”.  They went on to hold that criminal counsel must inform their clients whether their plea carries a risk of deportation.  Many criminal defense attorneys already advise clients about the fact that their plea may have immigration consequences.  The Supreme Court’s decision, however, holds that those advisals are constitutionally required and that a failure to provide them constitutes ineffective assistance of counsel.  Again, the entire criminal record must be reviewed so that your current attorney can determine who your last attorney was (which can sometimes be difficult if you had multiple public defenders) so that they can speak/consult with them regarding the case. 

With each of these motions, there is a "diligence" requirement, which basically means that you have to act to DO something about your conviction within a reasonable time of discovering it could hurt your immigration status.  This is often a sticking point for criminal courts because many people do not realize their conviction put their immigration status at risk until they go to renew their green card, or apply for naturalization.  This can mean that sometimes a DECADE has gone by since being convicted before you realize something is wrong and you need to go back to criminal court. 

Third are the smaller motions that can sometimes work to ameliorate immigration consequences, but not necessarily get rid of them all together.  For example, certain crimes for which you are sentenced to 365 or more, are considered AGGRAVATED FELONIES for immigraiton purposes.  If you have been convicted of an aggravated felony, that renders you ineligible for really ANY relief from removal in front of a judge.  If, however, you are able to go back to criminal court and REDUCE that sentence from 365 to 364, then you may at least be able to present your case to an immigration judge re: why you should not be removed from the U.S.  That is a motion to reduce, and similar to the above, it has a diligence requirement and often times, a jurisdiction problem that some courts will over look - others won't.  Most good post conviction relief attorneys will know whether the courts in their area will grant that type of motion or not - sometimes down to the judges that will and judges that won't.

Also, if you are in the Ninth Circuit Court of Appeals (CA, AK, AZ, HI, ID, MO, NV, OR, WA) a conviction for simple possession of a controlled substance can be expunged as long as that conviction was before July 14, 2011.  An expungement prior to that date will be effective for immigration purposes - i.e. if that is the only reason you are before the immigration judge, your case can be quickly resolved - but it is only effective for ONE simple possession conviction. 

 

As always, but perhaps even MORE so in instances where immigration and criminal law cross, it is VERY important to seek competent legal counsel. 

 

Applying for an Immigration Benefit with a Criminal Record

 

If you are planning on applying for your Green Card, already have a Green Card and need to renew it, or would like to apply for citizenship, but you have had some trouble with the police or immigration, DO NOT APPLY TO RENEW OR BECOME A CITIZEN WITHOUT SEEKING LEGAL ADVICE FIRST! This even applies if you are planning on applying for Deferred Action for Childhood Arrivals (DACA or "Dreamers"). 

 

I cannot stress enough the importance of making sure that your criminal record does not effect your immigration status before you apply for ANYTHING.  There are certain types of crimes that make you ineligible for immigration benefits, including renewing your Green Card that you have had for the past decade or two (or three).  You may think something you did 15 years ago couldn't possibly have an affect now, or you may have even renewed your card once or twice since your run in with the law so why can't you renew now?  In many cases you would be WRONG.  Immigration procedures have become much more stringent in the past ten to fifteen years, resulting in the placement of a record number of immigrants in removal proceedings. 

 

Let me give you an example:  I represented a young man who had had his green card since the 1980s.  When he was 18 or 19, he fell in with the wrong crowd and was convicted for possession of drugs for sale.  Eleven years after being convicted and serving his time, this young man attempted to renew his green card on his own.  He didn't believe his conviction was going to hurt him because he had served his time and changed his ways.  He was married with 4 beautiful children, owned his own home, and had been working at the same place for several years.  He was wrong.This conviction, despite it's age, rendered him removable from the U.S., and because it involved drugs, it also meant he could be detained by Immigration for the entire duration of his case.  For this case we had to reopen his criminal case and vacate it in order for him to even be ELIGIBLE to keep his green card.  If we were unable to do that, he would have been removed from the U.S. without even getting the chance to make a case before an Immigration Judge.  The whole process to OVER A YEAR and he was in immigration custody the entire time.  Thankfully, we were able to win his case, but had he sought my assitance before filing to renew his card, he could have avoided spending a year of his life in immigration custody for a crime he had committed a decade before.

 

This type of thing does not only apply to felonies or drug crimes, there are also misdemeanors which would put you in the same position as the young man I described above.  Just because criminal law calls something a "misdemeanor" doesn't mean that immigration sees it that way. 

 

All of that being said, just because you have a criminal record, does not necessarily mean all is lost.  There are several ways to amend or even erase your criminal record so that you can then apply for a benefit with immigration.  These are often complicated cases and not many immigration attorneys know how to do these types of cases as they are really considered to be criminal cases.  This type of help is called "Post Conviction Relief" and the attorney helping you has to know both the intricacies of Criminal Law in your state AND how those crimes affect your immigration status, in order to be able to help you.  Make sure that the immigration attorney you are working with has experience with this, or is at least working with a criminal attorney, so that you can ensure your case is being handled from every possible angle.  ALSO, if you are involved in criminal proceedings right now, make sure your criminal attorney consults with an immigration attorney!!! This is KEY to making sure that you avoid immigration consequences of your conviction later.  Often times, criminal attorneys are just trying to get you the best deal -- but that doesn't always translate to the best immigration consequence and lets face it, a lower fine and probation instead of jail time is not going to mean a whole lot if you can get DEPORTED afterwards.

In a future blog, I will explain with more detail, the grounds on which a conviction can be "vacated" or when an "expungement" is enough...but even with that information, as always, you need to SEEK COMPETENT LEGAL COUNSEL. 
 

Immigration relief for "Dreamers"

I am sure many of you have heard about the Dream Act in the news recently.  The Development, Relief and Education for Alien Minors Act, also known as the “DREAM Act,” is an Immigration Bill which was introduced in Congress in 2001, 2005, 2007 and 2009, but never made it to passage.  The bill, in its various forms, was aimed at providing immigrant children who graduated from United States High Schools, a path to legalization. 

Most recently, on June 15, 2012, Secretary Napolitano issued a memorandum announcing that, effective immediately, certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization.  While this is not as comprehensive as the prior Dream Act bills, it is a start!  As it stands right now, this is not a path to legalization, but rather provides protection from removal and work authorization. 

According to the Department of Homeland Security, individuals who meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:

1. Came to the United States under the age of sixteen;
2. Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
5. Are not above the age of thirty.

Applicants will be required to provide verifiable documentation that they meet this criteria.  It is estimated that an application process will be ready by August 15, 2012.  Check out this website for more details on each of the five criteria:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f2ef2f19470f7310VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310VgnVCM100000082ca60aRCRD

If you believe you may be eligible for this, seek legal advice!

The benefits of citizenship

"This Nation was founded by men of many nations and backgrounds.  It was founded on the principle that all men are created equal, and that the rights of every man are diminished when the rights of one man are threatened."

- J.F.K.

This post is for those of you that have been legal residents of the U.S. for several years, or were born in American Samoa and are currently US Nationals.  I cannot stress enough the importance of becoming a citizen, especially for those of you who are only green card holders because, while your green card gives you a certain amount of rights in this country, at the end of the day - it can be taken away.  You are never completely secure of your place in the United States unless you are a citizen.  Obviously, there are other benefits to becoming a citizen: (1) you can vote in state and federal elections and personally, I believe there is no greater responsibility than participating in the governing of our nation; (2) if you are a green card holder, you no longer have to renew your card every ten years; (3) and you can obtain a U.S. passport and travel with ease.

If you are a resident, depending on how you obtained your residency, you can become a citizen either 3 or 5 years after getting your green card.  For those of you who got your green card through your US Citizen spouse, you can apply for naturalization 3 years after getting your card as long as you are still married.  For all other green card holders, you can become a citizen 5 years after getting your card.  For those of you who were born in American Samoa, you can apply for naturalization as long as you have at least two years of residency in any U.S. state.  While the length of residency requirements are fairly straight forward, if you have had any trouble with the law, it would benefit you to seek legal counsel before applying because some criminal violations could render you ineligible for citizenship (and would likely result in getting your green card revoked if you tried to renew it).  Some of these types of violations can been "cleaned up," even years later.  This is called "post-conviction relief" and usually requires returning to criminal court.  But that is for another post.

Have you been the victim of a crime? Turn that unfortunate circumstance into a visa.

Have you ever been the victim of a crime?  Did you report it to the police?  Did you cooperate with an investigation or prosecution?  If so, you may be eligible for a U Visa.  This is a temporary visa, good for 4 years, and after the third year, you can apply for a green card (assuming you stayed out of trouble for those three years).  This visa was developed to encourage illegal immigrants to report crimes, where normally they would be wary of contacting the authorities.  It was also developed to help women who have been the victims of domestic violence, but could not take advantage of the immigration benefits under the Violence Against Women Act (VAWA) because they were either not married to their abuser, or their abuser also did not have legal status.  This visa is also a good option for some who would otherwise be ineligible even if a family member could apply for them.  For example, if your spouse could petition for you, but you had been previously deported, that deportation would not mean you couldn't apply for a U-Visa.  The same applies to if you over stayed your visa, or have been in the U.S. without permission - you can still apply for a U.  


In order to be eligible for the U Visa, you have to be a victim of a specific type of criminal activity, including: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, hostage situations, peonage, false imprisonment, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.  Now while you may not have been the victim of one of the specific crimes above, it is important to seek legal advice about this because many times, the crime is not specifically listed, but can fall under one of the categories.  


The U Visa is basically a two step process, first you must get a certifying official to sign a certification form, attesting to your "helpfulness" in reporting the crime, or aiding in the investigation or prosecution.  This "official" is usually someone from the police/sheriff's department who handled your case, or a district attorney who prosecuted the case.  I should point out here that often times you report a crime and that's it - you aren't asked for any further information or to testify.  Simply reporting a crime is enough - it doesn't even have to result in prosecution.  However, if you report a crime and then go to the police and perhaps withdraw that report, or ask that the perpetrator not be prosecuted - that does not count as helpful.  It obviously helps if the crime occurred fairly recently, but in my experience, it is possible to get an official to sign off on older cases.  It often depends on how well the official understands the U Visa and the requirements. 


Once a certification is signed, you can file for the U-Visa with a waiver for any grounds of inadmissibility that may apply to you - e.g. overstaying a visa, or entering the country without permission.  The application and waiver (I-918 and I-192) are rather complicated and require detailed declarations about the crime and detailing why you and your family would suffer if your waiver was not approved.  Also, there are only 10,000 U-Visas issued each year - so the person helping you should be able to tell you whether that cap has been reached yet.  Often, if you have a good U Visa case, even if the cap has been reached, immigration will give you a type of deferred approval that gives you permission to remain in the U.S. until the new fiscal year when new U Visas can be issued.  

Often times, your family members also get a U Visa, even if only you were the victim of the crime.  You would be called the "principal" and your relative would be the "derivative".  The family member wouldn't have to meet all the requirements of the visa, but they would have to file a waiver if they are in any way inadmissible (e.g. over stayed or are here without permission).  

Did someone file for you a long time ago and you just never completed the process?

There are three types of people who can do all of their paperwork here in the U.S.: (1) if you entered the country lawfully, you are still "in status" (i.e. you haven't overstayed your visa) and a resident spouse or parent, or citizen spouse, parent (if you are under 21) or child (fover 21) is petitioning for you, (2) you entered the country the country lawfully, overstayed your visa/permission, and you have a citizen spouse, parent (if you are under 21) or child (over 21) to petition for you, or (3) you have an old petition filed on or before April 30, 2001.  If you do not fall into any of those categories, then you most likely have to consular process - i.e. leave the country and apply to reenter from outside the U.S. - but that is for another blog.

I addressed #'s 1 & 2 in my last posts - this one is about #3.  Many people when they first entered the U.S. had family members, usually citizen siblings or parents who were already green card holders, who petitioned for them to remain here.  Due to the fact that those types of petitioners are not considered "immediate relatives" under immigration law, the aliens are assigned "priority dates" according to when their family members petitioned for them, and they have to wait until those dates are current.  Think of it like a huge line where people are waiting for their numbers to be called, or in this case for a visa to become available.  Some people started the process and because it took so long, they simply did not finish.  In some cases, just having those petitions filed - as long as they were filed on or before April 30, 2001 - is enough to be able to apply for a green card here in the U.S.  This type of application falls under Sec. 245(i) of the Immigration and Naturalization Act (INA) and requires an addition $1000 fee (or fine) in addition to the application fees.  Most applicants must also be able to prove that they were physically present in the U.S. on Dec. 21, 2000 - some are exempt from that requirement depending on the priority date of the original petition.  

Another benefit of this provision (besides the fact that you can remain in the U.S. while applying for your green card instead of having to return home), is that you don't necessarily have to use that original petition from on or before April 30, 2001 - in fact most people don't use that petition to get their green card.  As long as you can show that the petition from all those years ago was "properly filed," you can use the date on it to "grandfather" - which means if you have an immediate relative who can petition for you now, or you have another petition from a non-immediate relative where the priority date is now current, assuming you meet all other eligibility requirements, you can file your paperwork here in the U.S.

As usual, there are a myriad of eligibility requirements that need to be analyzed by a professional - so seek out an attorney before filing anything!

When you no longer have your passport or proof of your lawful entry into the U.S.

Continuing the theme of my last post, here is more detail on what happens if you lost all evidence of your lawful entry into the U.S. - i.e. your passport or you I-94.  As I stated before, under Immigration and Naturalization Act sec. 245(a), if you entered the country with permission (e.g. visa or border crossing card) your family members may be able to petition for you to become a lawful permanent resident - i.e. green card holder.  If you are still "in status", meaning you haven't yet overstayed your visa, your resident spouse or parent or your citizen spouse, parent, or over 21 child, can petition for you. The important distinction here is that your resident spouse or parent can only petition for you if you haven't overstayed yet.  If you have overstayed, then the petitioner needs to be a US Citizen.  This second situation is the one I am addressing in this post (because if you were still in status, you hopefully still have proof of your entry into the U.S.).  

Alright, so lets say you entered the U.S with a tourist visa some years ago and just never left.  Lets also say that you no longer have the passport you entered on with the stamp showing you were "inspected and admitted" upon your entry into the country.  In the past, this was a serious problem because you had to have physical/tangible/documentary proof of your entry.  Recent case law, however, has changed that and now, as long as you were inspected and admitted and you can prove it - either by testimony, witness, etc. - you can apply for your green card.  Now, if you don't have your passport or visa any more, proving your entry can be an issue and you need to understand that you may very well end up in immigration court, proving your case to a judge.  In my experience immigration officers at local USCIS offices  (United States Citizenship and Immigration Services - used to be called INS) always want a piece of paper showing you came in to the U.S. legally, even though the law does not require that.  So what could happen is that you present your case and your application to an officer, they deny you, and refer your case to Immigration Court.  While this may seem intimidating, the judge and the government attorney understand the law much better than an officer and if your case is strong (and you have competent representation), your case is winnable.  

Lets talk a little about what constitutes proof.  First you need to know the EXACT date you arrived and where you entered.  A vague recollection of the year is not going to do it.  Initially, you can try applying for a duplicate I-94.  That application requires fees (approx. $300) and you have to be able prove your entry, for e.g. (1) a detailed declaration from you regarding when you left your country, when you entered the U.S., how you entered - down to the airline you traveled on, who you traveled with, and the reason why you no longer have your passport or I-94, and hopefully (2) an affidavit from someone you traveled with who can corroborate your statement.  For Polynesians, our communities are fairly small, so there is a very good chance that there is someone you traveled with, or maybe someone who picked you up from the airport, who can vouch for you.  Obviously, this person is going to want to either be a resident or a citizen, because they will be providing a written statement to immigration. This application has about a 50/50 chance of success because you are basically asking immigration to take your word, and the word of any witnesses you may have, that you entered the country lawfully.  If the application is successful, however, and you are issued a new I-94, that pretty much guarantees you a green card, assuming the other elements of your eligibility have been determined.  So this is about weighing the odds of being granted a duplicate I-94 against the $300-ish filing fee.

Assuming you don't want to spend the extra filing fees for a 50/50 chance of getting a duplicate I-94 (because the rest of the applications are going to set you back over $1000), you will need the same type of proof that I mention above for your green card application and your interview.   Also, for those who traveled across the border by car/foot and were simply "waived in" at the border, you wouldn't have had an I-94 in the first place, so you can't apply for a new one, but that "waiving in" is also considered to be "inspected and admitted," so you can still apply and prove your entry with the same evidence I described above.  This case is obviously harder to prove, since you aren't coming from a country where you had to fly here and go through customs, but it has been done.  Again, statements from the person who drove you across perhaps, or someone you traveled with, would be helpful.  I cannot stress enough how helpful a statement from someone else to corroborate your story would be, however, if you really cannot think of anyone who can attest to your  lawful entry, you could consider taking and submitting to a lie detector test and submitting the results.  There are a few cases where this has worked, however, it is still a relatively new method/idea.

As always, all that I have described above is extremely complicated and you will most definitely need an attorney to analyze your case and help you navigate the process.  But at least with this basic information, you can decide whether or not you feel like you may have a case.  

Becoming a green card holder even if you overstayed your welcome (and your visa)

As a member of the Polynesian community, specifically Samoan - but this applies to pretty much everyone - I often meet people who came to the U.S. many years ago on a tourist visa and never left.  Sometimes after decades of living here, working, raising families, these people believe that there is no hope of becoming legal residents.  In many cases, however, that is not the case and in fact, they can quite easily apply for a green card if they have (1) a U.S. citizen spouse or child (over 21) and (2) they have never left the U.S. after their initial entry all those years ago.  This is key: if you overstayed your visa, left the U.S. and then returned, depending on when you left and returned, and how long you overstayed, your case can be greatly affected - from perhaps requiring a waiver, to not being eligible to apply at all.  It also helps if they have proof of their legal entry into the U.S., like an original passport or an I-94 (the card you get stamped when you enter) - but I will get back to that later.

This type of "adjustment of status" (i.e. going from undocumented to green card holder) falls under Immigration and Naturalization Act section 245(a).  Basically, an alien who has been "inspected and admitted" upon entry (i.e. you had permission to enter, like a tourist visa), can adjust their status to permanent resident through an immediate relative - so either a U.S. citizen spouse or adult U.S. citizen child.  It often does not matter how long ago the person entered the U.S., or how long they overstayed their visa.  There are obviously intricacies to every individual case that would affect this basic rule, however, which is why you should always consult an attorney about your specific case.  

Now, I address this to my Polynesian community because EVERYONE was "inspected an admitted" upon entry into the U.S. - I mean, we didn't swim here people.  So, even if you flew over 30 years ago and never left, if you have a citizen spouse or adult citizen child, they can most likely petition for you and you can obtain your green card with relative ease.  I should point out here, that if your spouse or child was born in American Samoa, but has been residing in the U.S. for more than two years, they can easily apply for citizenship and then turn around and apply for you.  But that's for another blog.  


As I stated before, it often helps to have the original passport you came on, or your I-94 card, so that you can easily prove your legal entry into the U.S.  If you no longer have either of those, however, all is not lost.  Current immigration case law does not REQUIRE physical proof of entry, but rather you can prove your lawful entry through testimony alone.  This often means, however, that you end up having to prove your entry before an immigration judge.  For the sake of keeping this particular post as basic as possible, I will not address the requirements for proving your case if you do NOT have proof of your entry - as in you didn't keep your passport from 20 years ago. I will save that for another blog - but rest assured, cases can be won without physical proof of your entry.  

So, if you arrived here 3 months, 3 years or 3 decades ago and did not leave when you were "supposed to" you are not necessarily barred from becoming a permanent resident.  If you think this applies to you, now is the time to seek counsel so that they can analyze your specific case and help you through the application process. 

“Remember, remember always, that all of us, and you and I especially, are descended from immigrants and revolutionists.” 

- Franklin D. Roosevelt

With this blog, I hope to take some of the mystery out of the immigration process, while also addressing current immigration law and developments.  I have found that while people often have strong opinions about immigration policy, they have little to no knowledge of how the immigration process works.  With each post and link, I will address both the "nuts and bolts" of various avenues of immigration, and broader immigration policy and reform proposals.  The information and links I post are for informational purposes only and not for the purpose of providing legal advice.  You should contact your attorney for advice with any specific problem or issue.