During my practice I encounter prospective clients who have a number of reoccurring immigration questions regarding permanent residence. My firm’s policy is to answer all questions in a private and confidential consultation for my prospective clients. However, occasionally I see a specific question that should be answered in the public forum so as to provide the most benefit to the immigrant community. Consequently, for this month’s article, I have deviated from the normal immigration topics and instead I will present and answer a common question that I receive from individuals who are applying for permanent residence.
A lady recently entered the United States on someone else’s passport. She is now married to a United States citizen. Based on her marriage to her husband she applied for permanent residence and Immigration has issued her a work authorization card. However, her permanent residence application has been pending for the last six years. The lady and her husband are wondering if Immigration intends to approve her permanent residence application or will she have to return to Jamaica.
Unfortunately, this lady’s question is a typical question that I encounter in my practice. Permanent residence is an immigration benefit that is given to individuals based on Immigration’s legal requirements. Under the immigration laws, an individual who is in the United States and who wishes to apply for permanent residence must meet the legal requirements. Granted, each individual’s case is different and in some cases Immigration has created exceptions to the general rule. However, the exceptions are not limitless and they are specifically created by law. To answer this lady’s question we will first need to examine the general requirements to see if she is eligible to obtain permanent residence. INA § 245, 8 U.S.C. §1255. If the lady does not meet the general requirements we will then review the available legal exceptions to see if her case can be approved based on an exception.
The general requirements for a Jamaican national dictate that the applicant must possess and demonstrate the following:
1. No criminal history in the United States or elsewhere in the world that would disqualify him/her from permanent residence;
2. The qualifying family petitioner/employer petitioner or other legal basis, for obtaining permanent residence;
3. Lawful Admission into the United States.
1. The Illegal Immigration Reform and Immigrant Responsibility Act, (IIRIRA), and the Antiterrorism and Effective Death Penalty Act, (AEDPA), transformed a number of minor offenses such as shoplifting into a deportable offense. Moreover to further complicate matters, when IIRIRA was passed in 1996 it applied retroactively to all those convicted of deportable offenses. In this lady’s case she has no criminal history that would prevent her from becoming a lawful permanent resident of the United States. Consequently, she has met this requirement.
2. Adjustment of status, which is commonly referred to as a “green card”, is the process of applying for permanent residence when the applicant is already in the United States. In order to obtain permanent residence the applicant must demonstrate the basis on which he/she is applying for permanent residence. Some applicants are able to obtain permanent residence through their employer, a family member, or through a self-petition based on asylum, cancellation of removal, refugee status, battered immigrant status and so forth. There are a number of different ways to obtain permanent residence other than through a family member or an employer. In order to determine your basis for permanent resident it is best to consult legal counsel. In this lady’s case her basis for permanent residence is her bona fide marriage to her United States citizen husband. Consequently as long as she can prove that her marriage to her husband is genuine, i.e., that she did not marry her husband solely to obtain immigration benefits, then she has met this requirement.
3. In order to obtain permanent residence in the United States a Jamaican national must show lawful admission into the United States. The applicant must show that he/she entered the United States on a valid visa with a valid passport and that he/she was inspected and admitted to the United States by the immigration official at the U.S airport or border. In order to prove lawful admission the applicant must submit a copy of his/her I-94 card, copy of passport and visa. This requirement is called the admissibility requirement. INA §101(a)(13)(A). In this lady’s case she entered on another individual’s passport by presenting the passport as her own. This is known as presenting fraudulent documentation to an immigration officer. This is a violation of immigration law. In addition, her entry into the United States on someone else’s passport cannot be a lawful entry because the passport did not belong to her. Consequently, she does not meet the requirement of lawful admission. As such, she is not eligible to obtain an approval on her permanent residence application.
At the initial filing of a permanent residence application Immigration usually only performs a brief review to ensure that the appropriate forms and the correct filing fees have been submitted. In addition, an applicant is usually eligible to receive a work permit while an application for permanent residence is pending. Immigration usually does not perform a detailed review of the merits of the application until the case is assigned to an Immigration officer and the case is scheduled for an interview. Consequently, despite the fact that this lady’s case has been pending for six years and she has received her work permit, Immigration would ultimately deny her application because she has not met the requirements for permanent residence. This lady would have to depart the United States and her husband will then need to submit a new petition for her while she is in Jamaica. In addition, due to her illegal entry into the United Stets this lady would also need to pursue a waiver application with the U.S. Consulate in Jamaica to waive the issue of her illegal entry.
In this lady’s case, the best action would be to withdraw the permanent residence application and return to Jamaica. Her husband could then go ahead and request consular processing so that she will be processed for her permanent residence through the U.S Embassy in Jamaica. In the event that the lady continues with her permanent residence application it is very likely that the Immigration officer will forward her file to removal/deportation court once he/she has denied the lady’s application. If the lady is placed in removal proceedings her only option would be to apply for cancellation of removal. Cancellation of removal is an application that can only be submitted when the applicant is in removal proceedings. If the court grants the approval of this application then the applicant is awarded permanent residence. An applicant for cancellation for removal must prove that he/she has resided in the United States for ten years, he/she has good moral character, he/she has United States citizen or permanent resident parents, spouse or children, and that his/her removal would result in extreme and unusual hardship to his/her United States citizen or permanent resident parents, children or spouse. INA § 240A(b); 8 U.S.C. §1229a(b); 8 C.F.R §§ 240.11(a), 240.20 If the removal court denies this lady’s cancellation of removal application, the court will order that she leaves the United States which will further complicate this lady’s case when she returns home to Jamaica.
Disclaimer: This article is a broad overview of a frequently asked question associated with acquiring permanent residence. This article is provided as a public service and is not intended to establish an attorney client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.
About the Writer:
Safiya Byars is a native of Jamaica and an attorney in Decatur, Georgia. Her firm is located at 160 Clairemont Avenue, Ste. 200, Decatur, Georgia 30030. Her firm handles all Immigration Matters, Deportation, Domestic Relations, Criminal Defense, Business Formation and Litigation, Landlord/Tenant and Estate Planning. To discuss your case, please contact Attorney Byars at 404-992-6506 or 678-954-5809 or via email. or visit her firm’s website.