Immigration Violations And Waivers

There are many reasons immigrants get caught up in the Immigration drag net, have their Immigration applications denied, their Green Cards revoked or are deported from the United States. The obvious are those who have been convicted of criminal activity in the United States, those who enter the country illegally or those who overstay their visa.

The “illegals” are those individuals who cross a land border without a visa or border crossing card and are not inspected by an Immigration or Customs Officer at entry. Contrary to what the news media may indicate illegals are matched by countless other people who come to the United States each year with a visa issued by an American Embassy in their country of origin. Each legal entrant is given an entry permit called an I-94 arrival/departure record. This piece of paper is stamped by an Immigration Officer and indicates that the entrant has been inspected by an Immigration and/or Customs Officer, and states for how long the individual may remain in the United States. Once the I-94 card expires and the individual remains in the United States, s/he is considered a visa overstay. The companion visa in the passport is no longer valid and re-entry to the United States may be difficult if not impossible.

Most visa overstays or illegal entrants are seldom detected by Immigration authorities until they submit an application to Immigration or are apprehended by local police authorities for criminal violations or traffic infractions. A lot of “illegals” however are caught and detained at entry by border patrol agents. These individuals are immediately placed in removal proceedings pending Immigration court hearings, while others are turned back by border patrol agents immediately upon attempt at entry. The actions of the border patrol agent are also considered deportation and named “expedited removal” and have the same effect as an Order by an Immigration Judge. Those who are placed in proceedings may be released on bond or detained in an Immigration detention facility pending further hearing.

There is a number of other Immigration violations besides entry without a visa or visa overstay. Those with visas who entered and failed to do what they said they would while here, but whose I-94 cards have not expired are also visa violators. For instance, those who obtain student visas but fail to attend classes or drop out prematurely could be deported. Or those who obtain a trader or investor visa to open a business but do not, but continue to remain in the US run the risk of being deported. Likewise, those who have employment visas who fail to work for the sponsoring company or are terminated early but fail to depart the U.S. are considered violators as well.

Many violators do not have a method by which they can legalize their status, however; there are always exceptions. Many violators can legalize because of spouses, parents or adult children who are US citizens. So although visa overstays are customarily prevented from changing or legalizing their status once the I-94 card has expired, a few can become Lawful Permanent Residents if they have the qualifying family connection. But they too like all other applicants for a Green Card must make sure they do not violate the host of other immigration regulations. Few “illegals” can legalize through family. They can legalize, however, if and only if they qualify based on family petitions previously filed during the Immigration and Nationality Act section 245(i) filing period which expired on April 30, 2001.

A big obstacle to changing or legalizing status for every Green Card applicant is working without authorization. If an individual who is a non-citizen, non-resident has worked without applying and receiving an employment authorization document (EAD) s/he may be disqualified from changing their status. Generally, if a B-2 tourist/visitor is working without authorization and attempts to extend his or her status in this category, s/he may be denied because working under this category is inconsistent with the intent to maintain status as a temporary visitor for pleasure. In order to extend status, a B-2 tourist/visitor must demonstrate how s/he will support him/herself without working while “vacationing” in the United States. Obviously, income cannot be derived from unauthorized work in the United States. There are some exceptions to this rule as well.

Another common group of Immigration violators are those who engage in fraud to obtain an immigration benefit. This fraud may be either in the way of false documentation or verbal misrepresentations. These are the individuals who enter the country with photo-switched passports, have visas issued after presenting false information on a visa application, or assume a legitimate visa holder identity or claim to be US citizens upon entering the United States.

Other Immigration violations involve Green Card holders. Those individuals are not protected from deportation either. These individuals include those who fail to remove the conditions on residency if they have an expired two year Green Card, those who engage in smuggling other illegals across the border, and even those convicted of domestic violence crimes, including stalking, child abuse or violations of protection orders. Further, individuals who falsely claim to be US citizens not just upon entry or vote in elections thinking they can are also deportable. Nowadays, voter registration occurs when applying for a driver’s license. Although an individual may be given an application to register to vote or told to submit one; unless s/he is a US citizen, s/he is not eligible and should not ever register to vote or vote in a US election. It should also be noted that while using a false or fake Social Security card in and of itself is not an immigration violation, circumstances surrounding unauthorized employment which may be the result of false claims of US citizenship could result in denials of a Green Card application and subsequent deportation. Those who participate in sham marriages and for whom there is a finding of marriage fraud by US CIS, may be deported also. In addition, those who become public charges within five years of entry to the United States, submit frivolous asylum applications, or even have failed to change their address by completing Form AR-11 (now available online) can be deported.

Although many people may be implicated or fall into one or more of the categories mentioned above, not all will end up in deportation proceedings and not all will be precluded from obtaining legal status. For most violations, there are “waivers” or pardons available. The completion and submission of a companion form: Form I-601 Waiver and filing fee may be requested and in most cases is required. The Waiver requires a qualifying US citizen or Permanent Resident Immediate relative. Most waiver cases are based on demonstrated hardship to the US citizen or Permanent Resident relative. It should be noted that refugees and battered spouses are not exempt from requests for waivers for their immigration violations. Only for three major violations are there permanent bars and no waivers available. Outside the criminal context, no waivers are available for those who have a final finding of marriage fraud, claims under oath to be US citizens/have voted in an election, and those who submit frivolous asylum applications. For others who may be deported and who did not have the opportunity for a waiver or any relief in Immigration court, deportation may carry up to a ten (10) year bar before an application for re-admission may be submitted. In still other cases, it may be up to twenty (20) years depending on the violation. These also have exceptions, thus each case must be analyzed by a highly qualified Immigration legal practitioner.

Attorney Nadine A. Brown practices Immigration Law in the Greater Orlando, Florida area. She has practiced Immigration Law for approximately 8 years, 3 of which was as the supervising attorney for the Catholic Charities Immigration & Refugee Services and the last 4 of which were in private practice. Her firm was established in 2002 and her cases involve issues relating to asylum, citizenship, consular affairs, deportation, residency petitions, student and business visas, and visa extensions or changes of
status. She handles all cases personally. Questions can be sent to [email protected]

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