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Immigration 2 > Tucker > Flashcards

Tucker Flashcards

1
Q

Big Picture

A

Big Picture

Can they apply for various visas

Family Based Visas

Are they a child under the INA

Can they get a Vawa Visa as victim of domestic crime

Can they get a visa under U visa – Victim

Are they in Removal Proceedings

Cancelation of Removal for Permanent Residents

Cancelation of Removal for Non-Permanent Residents

Is Vd an option?

Pre-Conclusion VD an Option?

Post Conclusion VD an option?

Is the noncitizen inadmissible because of unlawful presence?

Is the noncitizen inadmissible because of Removal Proceedings?

Citizen and LPR wants to apply for citizenship

Any facts for Rescission

Citizenship Elements

Can they adjust status?

INA 245(a)

INA 245(I) –

Common Inadmissibility Grounds

Public Charge

EWI

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2
Q

Checklist

Can they apply for various visas

A

Can they apply for various visas

Family Based Visas

  1. Immediate Relatives of USC
  2. Relatives of US citizens subject to quota
    1. F1
    2. F3
    3. F4
  3. All Relatives are subject to quotas
    1. F2A
    2. F2B
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3
Q

Can they apply for various visas

Family Based Visas

  1. Immediate Relatives of USC
  2. Relatives of US citizens subject to quota
    1. F1
    2. F3
    3. F4
  3. All Relatives are subject to quotas
    1. F2A
    2. F2B
A

Can they apply for various visas

Family Based Visas

Relatives of US Citizens subject to quotas

  1. Adult Son/Daughter of a U.S. Citizen who is unmarried F1
  2. Married Son/Daughter of a U.S. Citizen F3
  3. Brother/Sister over age 21 of a U.S. Citizen F4

All relatives of LPRs are subject to quotas

  1. Spouse or Child of an LPR F2A
  2. Adult, Unmarried Son/Daughter of an LPR F2B

Immediate Relatives of US CITIZENS are exempt

  1. Spouses of U.S. Citizens See INA § 201(b)(2)(A)(i)
  2. Children Under 21 unmarried of a U.S. Citizen (this includes stepchildren, adopted children, and children born out of wedlock) See INA § 101(b)
  3. Parent of a U.S. Citizen Son/Daughter Who Is at Least 21 Years old See INA § 201(b)(2)(A)(i)
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4
Q

Are they a child under the INA

Checklist

A

Are they a child under the INA

  1. In Wedlock , only need
    1. U21
    2. Unmarried
  2. Stepchild
    1. U21
    2. Unmarried
    3. MU18
    4. MBonafide
  3. Out of wedlock may obtain immediate relative status if Through Mom
    1. U21
    2. Unmarried
    3. Relationship
  4. Out of wedlock may obtain immediate relative status through father
    1. U21
    2. Unmarried
    3. Biological
    4. Legitimated 18
    5. Or Bonafide
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5
Q

Are they a child under the INA

  1. In Wedlock , only need
    1. U21
    2. Unmarried
  2. Stepchild
    1. U21
    2. Unmarried
    3. MU18
    4. MBonafide
  3. Out of wedlock may obtain immediate relative status if Through Mom
    1. U21
    2. Unmarried
    3. Relationship
  4. Out of wedlock may obtain immediate relative status if
    1. U21
    2. Unmarried
    3. Biological
    4. Legitimated 18
    5. Or Bonafide
A

Are they a child under the INA

In Wedlock, only need

  1. Under 21 years
  2. Unmarried

Stepchild Need,

  1. Under 21 years
  2. Unmarried
  3. When parents where married, he was under 18 years of age
  4. Marriage was bonafide

Children Born out of Wedlock may obtain immediate relative status if

  1. Through Mom – just by showing the relationship between child and mom
  2. Through Dad –
    1. Only through biological father
    2. The child was legitimated before the age of 18. Legitimated means that the child born out of wedlock has been accorded legal rights identical to a child born in wedlock OR
    3. Father has had a bona fide relationship with child
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6
Q

Can they get a Vawa Visa as victim of domestic crime

Checklist

A

Can they get a Vawa Visa as victim of domestic crime

Special Requirements for abused spouses

  1. USC or LPR
  2. Good faith

Special requirements for abused children

  1. USC or LPR

Special requirement for abused parents:

  1. USC

Requirements for all

  1. Qualifying
  2. BEC
  3. Reside(s)(d)
  4. Good Moral character
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7
Q

Can they get a Vawa Visa as victim of domestic crime

Special Requirements for abused spouses

  1. USC or LPR
  2. Good faith

Special requirements for abused children

  1. USC or LPR

Special requirement for abused parents:

  1. USC

Requirements for all

  1. Qualifying
  2. BEC
  3. Reside(s)(d)
  4. Good Moral character
A

Can they get a Vawa visa as a victim of a domestic crime

  • Special Requirements for abused spouses:
    1. Is or was married to USC or LPR
    2. Marriage was in good faith
  • Special Requirements for abused children:
    1. Is child of USC or LPR
  • Special Requirements for abused parents:
    1. Is parent of USC
  • Requirements for all victims:
    1. Has or had a qualifying relationship to the abuser
    2. Subjected to battery or extreme cruelty by the abuser
    3. Resides or Resided with the abuser

Good moral character

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8
Q

Can they get a visa under U visa – Victim

Checklist

A

Can they get a visa under U visa – Victim

  1. Criminal/Substantial
    1. Violent
  2. Information
  3. Helpful
  4. US or US law
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9
Q

Can they get a visa under U visa – Victim

  1. Criminal/Substantial
    1. Violent
  2. Information
  3. Helpful
  4. US or US law
A

Can they get a visa under U visa

INA § 101(a)(U) - In order to be eligible for a U visa a victim must:

  1. Be a victim of qualifying criminal activity and suffered substantial physical or mental abuse as a result of the crime.
    1. A Qualifying Crime is virtually any form of violent crime: rape, domestic violence, child abuse, felonious assault (e.g. armed robbery), stalking,
  2. Possess information about the qualifying criminal activity.
  3. Have been, is being, or is likely to be helpful to the investigation and/or prosecution of that qualifying criminal activity.
  4. Be a victim of criminal activity that occurred in the U.S. or violated a U.S. law.
  5. NOTE: In order to be eligible for a U visa, the agency involved in the investigation of the crime must first sign a “U Visa Certification Form” basically establishing all of the above. Without this ”certification” a person cannot apply for a U visa.
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10
Q

Are they in Removal Proceedings

Cancelation of Removal for Permanent Residents

Checklist

A

Are they in Removal Proceedings

Cancelation of Removal for Permanent Residents

  1. 5 years LPR
    1. Final order
    2. Fraud
  2. Aggravated
  3. Continuous 7
    1. Stays
    2. Notice to Appear
    3. Moral Turpitude
    4. 90
    5. 180
    6. VD
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11
Q

Are they in Removal Proceedings

Cancelation of Removal for Permanent Residents

  1. 5 years LPR
    1. Final order
    2. Fraud
  2. Aggravated
  3. Continuous 7
    1. Stays
    2. Notice to Appear
    3. Moral Turpitude
    4. 90
    5. 180
    6. VD
A

Are they in removal proceedings

IF LPR IN Removal proceedings – Cancelation of Removal for Permanent Residents

  • Requirements to Seek Relief:
    1. Five years of LPR status –
      1. keep in mind that according to the regulations LPR status ends only until a final order of deportation or removal is entered
      2. LPR obtained by Fraud does not count for relief under this section
    2. Not convicted of an aggravated felony
    3. LPR must have resided in the U.S. continuously for 7 years after admission in any status.
      1. Nonimmigrant stays count (for example, before adjusting status the person was here on an NIV visa)
      2. Continuous presence ends when the LPR is served with the Notice to Appear (INA § 240A(d)(1)(A))
      3. Continuous presence ends when the LPR commits a crime in INA § 212(a)(2) (generally a crime involving moral turpitude)
      4. a single departure of more than 90 days automatically destroys continuous physical presence
      5. Cumulative absences of more than 180 destroy continuous physical presence
      6. Voluntary departure also destroys continuous physical presence
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12
Q

Are they in Removal Proceedings

Cancelation of Removal for Non-Permanent Residents

Checklist

A

Are they in Removal Proceedings

Cancelation of Removal for Non-Permanent Residents

  1. Continuous 10
    1. Stays
    2. Notice to Appear
    3. Moral Turpitude
    4. 90
    5. 180
    6. VD
  2. Good Moral Character
  3. No convictions
  4. Exceptional Extremely Unusual
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13
Q

Are they in Removal Proceedings

Cancelation of Removal for Non-Permanent Residents

  1. Continuous 10
    1. Stays
    2. Notice to Appear
    3. Moral Turpitude
    4. 90
    5. 180
    6. VD
  2. Good Moral Character
  3. No convictions
  4. Exceptional Extremely Unusual
A

IF NON-LPR IN Removal proceedings – Cancelation of Removal for Permanent Residents Requirements to Seek Relief:

  1. The non-citizen must have been physically present in the U.S. for a continuous period of at least 10 years (same rules apply as to the termination of continuous physical presence See INA § 240A(d)
  2. Be a person of good moral character
  3. Have no convictions for crimes that make the non-citizen inadmissible; and
  4. Establish that removal will result in exceptional and extremely unusual hardship to his/her spouse, parent, or child all whom must be LPRs or USCs. (THIS IS OFTEN THE MOST DIFFICULT ELEMENT TO ESTABLISH AND THE CAUSE OF MANY CANCELLATION CASES BEING DENIED)
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14
Q

IS VD an option

Pre-Conclusion

Checklist

A

IS VD an option

Pre-Conclusion

  1. Concede
  2. No Physical
  3. Bond
  4. 120
  5. Before or master
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15
Q

IS VD an option

Pre-Conclusion

  1. Concede
  2. No Physical
  3. Bond
  4. 120
  5. Before or master
A

INA 240B(a) Pre-Hearing/Pre-Conclusion VD

  1. Must concede to removability
  2. No Physical Presence Requirement
  3. Bond is optional.
  4. Max days allowed to leave is 120 days
  5. Must occur before proceedings have been completed or during the master hearing
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16
Q

IS VD an option

Post Conclusion

Checklist

A

IS VD an option

Post Conclusion

  1. Good Moral Character
  2. Continuous 1
  3. 60
17
Q

IS VD an option

Post Conclusion

  1. Good Moral Character
  2. Continuous 1
  3. 60
A

INA 240B(b) Post Conclusion

  1. Good Moral Character is required
  2. Physical Presence Requirement – Respondent must have at least 1 year of continuous physical presence in the U.S. before issuance of the NTA.
  3. Max days allowed to leave is 60 days
18
Q

Is the noncitizen inadmissible based on unlawful Presence?

Checklist

A

Is the noncitizen inadmissible based on unlawful Presence?

  1. Unlawful Presence?
  2. April 1, 1997
  3. Departure
  4. 3 Year
  5. 10 year
    1. Waiver
  6. Permanent Bar
    1. Waiver
19
Q

Is the noncitizen inadmissible based on unlawful Presence?

  1. Unlawful Presence?
  2. April 1, 1997
  3. Departure
  4. 3 Year
  5. 10 year
    1. Waiver
  6. Permanent Bar
    1. Waiver
A

Is the non-citizen inadmissible because of unlawful presence

  1. What is unlawful presence? INA § 212(a)(9)(B)(ii) defines it as being present in the U.S. without being admitted or paroled, or being present after NIV expires.
  2. What counts? UNLAWFUL PRESENCE ONLY COUNTS AS OF APRIL 1, 1997!! ANY PERIOD OF UNLAWFUL STATUS IN THE US PRIOR TO THAT DATE DOES NOT COUNT
  3. What triggers it? A departure from the United States is what triggers the unlawful presence bars.
  4. 3 YEAR BAR INA 212(a)(9)(B)(i)(I)-–Unlawful presence for 180 days or more but less than 1 year + departure from the U.S. = inadmissible for 3 years
  5. 10 YEAR BAR INA 212(a)(9)(B)(i)(II)—unlawful presence for 1 year or more + departure from the U.S. = inadmissible for 10 years
    1. WAIVERS – both bars can be waived pursuant to INA 212(a)(9)(B)(v)
  6. PERMANENT BAR INA 212(a)(9)(C)(i)(I) – aggregate unlawful presence for 1 year or more + departure from the U.S. + attempted/reentry without admission = inadmissible
    1. WAIVER –Only if he/she remains outside the U.S. for 10 years, then he/she may apply for a waiver pursuant to 212(a)(9)(C)(ii)
20
Q

Is the noncitizen inadmissible based on Previous Removal_?_

Checklist

A

Is the noncitizen inadmissible based on Previous Removal_?_

  1. Applies to?
  2. 5 year
  3. 10 year
  4. 20 year
  5. Waiver
  6. Permanent Bar
  7. Waiver
21
Q

Is the noncitizen inadmissible based on Previous Removal_?_

  1. Applies to?
  2. 5 year
  3. 10 year
  4. 20 year
  5. Waiver
  6. Permanent Bar
  7. Waiver
A

Is the non citizen inadmissible base on prior removals

  1. Applies to? Persons Previously removed INA 212(a)(9)(A)- applies to people who have prior removal orders. This is true whether the order was an expedited removal order or an order from an immigration judge.
  2. 5 Year Bar – if given expedited removal initiated at arrival Essentially immigration officers can remove anyone who is inadmissible without further inquiry.
  3. 10 year Bar – if ordered removed after entering EWI or after being admitted (usually IJ orders)
  4. 20 year Bar – 2 or more removals (watch for inadmissibility under 212(a)(9)(C))
  5. Waiver is Available INA § 212(a)(9)(A)(iii) - during the inadmissibility period.
  6. Permanent Bar INA 212(a)(9)(C)(i)(II)– Prior removal/deport order + attempted re-entry/entry without admission = permanently inadmissible
  7. Waiver is Available INA §212(a)(9)(C)(ii)- Only if the person remains outside the U.S. for 10 years, then he/she may apply for a waiver
22
Q

Citizen and LPR wants to apply for citizenship

Any facts for Rescission

Citizenship Elements

Checklist

A

Citizen and LPR wants to apply for citizenship

Any facts for Rescission

Citizenship Elements

  1. LPR
    1. 5
    2. 3 Spouse
    3. 3 battered
  2. 1/2
  3. Continuous Residence
    1. 5
    2. 3 spouse obtained
    3. 3 battered obtained
    4. 61
  4. Read/Write/Speak
    1. 50/20
    2. 55/15
    3. 65/20
  5. Good Moral Character
  6. Oath
23
Q

Citizen and LPR wants to apply for citizenship

Any facts for Rescission

Citizenship Elements

  1. LPR
    1. 5
    2. 3 Spouse
    3. 3 battered
  2. 1/2
  3. Continuous Residence
    1. 5
    2. 3 spouse
    3. 3 battered
  4. Read/Write/Speak
    1. 50/20
    2. 55/15
    3. 65/20
  5. Good Moral Character
  6. Oath
A
  1. Must be an LPR for at least 5 years prior to the date the person applies for naturalization.
    1. EXCEPTIONS INA § 319
      1. Spouse of USC (Can apply in 3 years)
      2. Battered Spouse of USC (Can apply in 3 years)
  2. Continuous Residence in the U.S. INA § 316(a)
    1. Five years of continuous residence in the United States
    2. 3 years if obtained LPR through USC spouse/battered spouse of USC
    3. Absences of 6 months or more but less than a year break the continuity of residence if it occurred within the 5/3 year period
  3. Has Been in the U.S. for at least ½ of the 5 or 3 years before applying
  4. Must demonstrate an understanding of the English language, including ability to read, write and speak. INA § 312(a)(1)
    1. EXEMPTIONS – Applicants who can take the exam in their native language
      1. 50 years of age or older + LPR status for 20 years ;or INA § 312(b)(2)(A)
      2. 55 years of age or older + LPR status for 15 years INA § 312(b)(2)(B)
      3. Over the age of 65 + LPR status for 20 years INA § 312(b)(3)
  5. Must be a person of good moral character during the 5 or 3 year period preceding the application INA § 316
  6. Understand the Oath of Allegiance to the United States
24
Q

Can they adjust status

Checklsit

A

Can they adjust status

INA 245(a)

  1. Immediate/inspected/Admitted/Paroled

INA 245(I) –

  1. Family/ Labor
    1. April 30, 2001
    2. January 14, 1998
    3. December 21, 2000
  2. $1,000
  3. EWI Waived
25
Q

Can they adjust status

INA 245(a)

  1. Immediate/inspected/Admitted/Paroled

INA 245(I) –

  1. Family/ Labor
    1. April 30, 2001
    2. January 14, 1998
    3. December 21, 2000
  2. $1,000
  3. EWI Waived
A

Can they adjust status

Adjustment of Status is only possible under two grounds:

  1. INA § 245(a) – immediate relatives who were inspected and admitted, or paroled. (E.g. those who entered with visas; or those who entered after an advance parole was granted)
  2. INA § 245(i) – those who were direct beneficiaries or derivatives of a family petition, or labor certification filed on or before April 30, 2001.
    1. Where the underlying petition or labor certification was filed after January 14, 1998 there is an additional requirement that the person must show evidence that they were physically present in the U.S. on December 21, 2000
    2. All applicants who adjust under INA § 245(i) pays fee of $1000
    3. Unlawful presence waived under EWI
26
Q

Common Inadmissibility Grounds

Public Charge

EWI

Checklist

A

Common Inadmissibility Grounds

Public Charge

  1. Factors
  2. Affidavit of Support

EWI

  1. Def
  2. Exceptions – USA CD
27
Q

Common Inadmissibility Grounds

Public Charge

  1. Factors
  2. Affidavit of Support

EWI

  1. Def
  2. Exceptions – USA CV
A

Other Common inadmissibility Grounds

Public Charge

Factors Considered in Making the Determination That a Person is Likely to Become a Public Charge INA § 212(a)(4)(B): The applicant’s

  • (a) Age, (b) health, (c) family status, (d) assets, resources, and financial status, and (e) education and skills

Affidavit of Support – typically submitted by the sponsor with proof that he/she makes more than 125% of the poverty guidelines and can adequately provide support for the beneficiary. Typically this was enough to exclude a person from this ground of inadmissibility. BUT there is are going to be policy changes taking place soon

EWI

  • Entering Without Inspection INA § 212(a)(6)(A)(i) – anyone present in the United States without being admitted or paroled; or who arrives in the U.S. at any time of place other than as designated by the Attorney General is inadmissible.
    • Exceptions VAWA Self –Petitioners; U Visas; SIJS; Asylum; Cancellation of Removal
    • 245(i) beneficiaries – although not specified those who are eligible to adjust under INA § 245(i) basically have their unlawful entry “waived” for adjustment of status purposes only.

Immigration 2 (2 decks)

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