What is Immigration Law?
Immigration law is a complex area of United State federal law. Immigration applications, such as those for visas and green cards, are filed through the United States Citizenship and Immigration Service, or USCIS, which is a branch of the Department of Homeland Security. Additionally, other U.S. departments, such as the Board of Immigration Appeals (BIA), Department of Labor, and the U.S. District Courts may also administer and review relevant documents of immigration cases.
Immigration matters in New York City are heard within the local immigration court, which is a federal court that is located at:
26 Federal Plaza
New York, NY 10278
(800) 827-1000
Do I Need an Immigration Lawyer?
An immigration lawyer works to correctly file the forms and documents required for a foreign-born citizen to stay, work, or reside within the United States. A lawyer can give an applicant an advantage by effectively describing your immigration case to the immigration officials. In addition, they can help explain the laws and procedures so that you in turn can help supply the right information for your case to be successful.
Immigration attorneys can also help with translation for people who are not fluent in the English language. Many immigration lawyers speak in at least one other language and work with immigrants from a particular country or region. The lawyer will also speak on your behalf to the immigration judge if you ever need to appear in court.
An immigration lawyer can also help with moving the process along. Immigration and visa applications can often take a long time and the processing time can vary depending on the amount of paperwork received by USCIS. As your legal representative, they can inquire about your case to help move the process along.
Pro Se Help
If you choose not to utilize an immigration attorney, there are many resources to help someone who is representing themselves, or called pro se. All the required forms needed for visa applications can be found on https://www.uscis.gov/forms.
Additionally, one can find the fees for all applications here: https://www.uscis.gov/g-1055
Please note that these fees are only what is required to submit the applications, and they do not include any attorney or legal services.
When Should you Contact a Lawyer?
A person should not hesitate to contact an immigration attorney if they potentially have a condition that could make them inadmissible for entry into the United States. Additionally, a person should immediately contact a lawyer if they find themselves in criminal trouble or in removal proceedings.
Visa
A visa is a legal document that allows a foreign-born citizen to enter and stay in the United States for a temporary period. A visa is usually not needed for a brief vacation, but will be needed if a person wishes to study, work, or conduct business within the U.S.. Some visas are non-immigrant, for short durations, whereas some are immigrant visas, which provide a way for a person to stay permanent in the U.S. and apply for a green card.
The Path to Citizenship – How to get a Green Card
A person can become a U.S. Citizen through the process of Naturalization. This requires that the immigrant must first obtain a Green Card, also known as a Permanent Resident Card. Thus, a person with a green card is not yet considered a U.S. Citizen, but a lawfully permanent resident, or LPR. A person with a green card is able to stay in the U.S. and is authorized to work legally within the U.S. After a period of (5) years residing in the U.S. and holding a Green Card, the person then can apply for citizenship.
How to Apply for a Green Card
A person is eligible to apply for a green card based through family members, employment, investment, diversity, through asylum, or refugee status. A person who is applying for a green card must file an Adjustment of Status, I-485 which indicates that you wish to apply for permanent residency.
Green Card Through Sponsorship of a Family Member
Green cards are available for “immediate” family members of U.S. Citizens and LPR. People who are considered “immediate relatives” of a citizen include spouses and children. The current preference list is as follows:
- 1st Preference – F1: Unmarried children, 21 years of age and older, of U.S. citizens
- 2nd Preference – F2A: Spouses and unmarried children (under age 21) of green card holders. F2B- Unmarried children (over age 21) of green card holders.
- 3rd Preference – F3: Married children of a U.S. Citizen parent.
- 4th Preference: Siblings of U.S. Citizens.
Certain family members of U.S. Citizens or permanent residents who are not considered “immediate relatives”, such as a parent, may also apply for a green card as well, however, only a limited number of these green cards are available every year. Thus, a person could very well have to wait several years before they can bring over a non-immediate family member into the country.
How to Get a Family-Based Green Card
To obtain a family-based green card, the sponsoring family member must file an I-130 Form, Petition for Alien Relative, the Adjustment of Status, and the Affidavit of Support. The Affidavit of Support (I-184 Form) states that the sponsoring family member can financially provide for the applicant. The United States will not accept an immigrant if they are likely to become a “public charge,” which means they likely will go on public assistance or welfare benefits. Thus, Immigration requires an Affidavit of Support from the sponsor stating that they will cover the costs of immigrant so they will not have to rely on government assistance.
The sponsor states under oath that they will be able to financially support the recipient. They must provide proof of income. Currently, the income requirement to sponsor a family member is 125% of the federal poverty level, depending on your household size. If one does not meet the financial requirement, they can still apply if they add another co-sponsor. The co-sponsor must be a U.S. Citizen or Permanent Resident who also fills out an Affidavit of Support, declaring that they will be legally financially responsible for the immigrant.
Employment-Based Green Card
Green cards may also be obtained through employment. There is a preference for employment based green cards, which is as follows:
- 1st Preference: EB-1 for persons of “extraordinary ability” in the arts, science, education, business, or athletics.
- 2nd Preference – EB-2: For persons who have “exceptional ability” or advanced degrees in their field.
- 3rd Preference- EB-3: For all other workers who are professional, skilled workers, or unskilled works.
- 4th Preference – EB-4 is for “special immigrants,” which include, religious workers, employees of foreign service U.S. Posts, minors who are wards of courts in the United States, and other classes of aliens.
How to Obtain an Employment-Based Green Card
Once an EB Visa holder applies for a green card, they must file an Adjustment of Status and have their employer sponsor them. Their employers must file a PERM labor certification (which certifies that they could not find a U.S. Citizen to hire), as well as a Petition for Alien Worker I-140 Form.
Investment-Based Green Card
A green card through investment is available to foreign-born citizens who have made a substantial investment to establish a commercial enterprise in the United States that will employ at least (10) U.S. employees. The required investment for is currently $900,000 for investments in rural or high-employment areas, or $1,800,000 in all other areas.
Diversity Lottery
A person from a country with low immigration rates can apply for the Diversity Visa (DV) lottery, also called the “green card lottery.” Fifty thousand visas are issued through this program. A DV visa allows a person to come to the U.S. within (6) months. Once in the United States, a person on a DV visa can apply for their Adjustment of Status and green card based on diversity.
The current list of Diversity Visa countries can be found here: https://travel.state.gov
Green Card through Refugee or Asylum Status
A person applying for political asylum or refugee status is defined as someone who is unable to return to their original country, due to history of well-founded persecution due to race, social class, religion, politics, or nation origin. The difference between the two classifications is that a refugee begins the process when they are still in their home country, whereas an asylum applicant applies when they are already in the United States. An applicant must show that it would be dangerous to stay or return to their home country due to persecution. After one year as a refugee in the United States, a person is required to apply for permanent residence. After one year of residence in the United States an asylee can apply for permanent residence.
Green Card for Victims of Domestic Violence
The Violence Against Women Act, or VAWA, provides a way for victims of domestic violence to apply for a green card. In VAWA, a person does not need a sponsor, but can self-apply. The name is a little misleading, as you do not need to be a woman to qualify under VAWA, you can be a man or child. The qualification is that the person must have suffered domestic abuse from a close family member (spouse or parent) who was a citizen or lawful permanent resident.
Deportation: How Can a Person Lose Their Green Card?
Removal proceedings, or deportation, is the legal action to remove a non-citizen from the United States and return them back to their country of origin. A person cannot be removed without cause. Generally, deportable offenses are also the reasons why someone might be barred entry from the United States, however generally in deportation, the offenses occur after a person received entry.
A person can lose their permanent resident status if they violate the law by committing a violent crime or aggravated felony or a Crime Involving Moral Turpitude (CIMT). A CIMT is any offense that is considered poor moral character. These offenses include fraud, embezzlement, forgery, and tax evasion.
A person can be removed from the country only if they are found guilty of an aggravated felony or CIMT. The person then can appeal their deportation, which will lead to a trial in immigration court. In some cases, an immigration judge will issue a “cancelation of removal,” which in effect ends removal processing and lets the person stay in the U.S.. One should immediately contact a qualified immigration lawyer if they find themselves in possible removal proceedings.
Criminal Immigration Lawyer Services
The United States Constitution provides a right to representation for citizens who have been charged with a crime. However, this constitutional right to a lawyer does not extend to non-citizens or LPRs. Therefore, if you are a non-citizen who has been charged with a criminal defense, you will need to find your own attorney. Many organizations, however, exist to help immigrants who are being charged. Many are pro bono (free) or low bono (low cost).
If you are a non-citizen charged with a crime, you should immediately contact an immigrantion legal aid or a criminal law firm. This is because in addition to the criminal charges, you may also face deportation if you are convicted.
A 2010 Supreme Court decision, Padilla v. Kentucky, declared that criminal defense attorneys of immigrants must advise their clients of the potential immigration or deportation consequences of their criminal case. This means that a criminal defense attorney must inform the client how their immigration status or permanent residency might be affected by a conviction or by accepting a plea deal. If the attorney does not advise the person with regard to the immigration consequences, the client has the power to overturn a conviction on this basis.
The Immigrant Defense Project is a NYC pro-bono service that provides representation to immigrants in criminal defense cases:
Immigrant Defense Project
40 W 39th Street #501
New York, NY 10018
(212) 725-6422
https://www.immigrantdefenseproject.org/
Where to Find a Qualified NYC Immigration Attorney
One can find a qualified NYC immigration lawyer through referrals and directories. The New York Bar Association provides a free-referral program. One can access it here: Request a Lawyer
The NYC Bar Association is the most comprehensive resource, as they keep track of all lawyers currently admitted to practice in New York.
List of Local Pro-Bono Immigration Services
InfoPass is a free service provided at a local USCIS center to discuss the status of your case. They can also help with applications and general question.
https://my.uscis.gov/en/appointment/v2
New York Legal Assistance Group (NYLAG)
7 Hanover Square, 18th Floor
New York, NY 10004
(212) 813-5000
https://www.nylag.org
The City University of New York provides free legal help to migrant New Yorker’s (you do not have to be a student at CUNY to receive services), through their free CUNY Citizenship Now! Program.
5030 Broadway, Suite 615
New York, NY 10034
Tel. 646-664-9350
http://www1.cuny.edu/sites/citizenship-now/
Cambra – Immigration Legal Services
931 Flatbush Avenue, Brooklyn, NY 11226
(718) 940-6311
https://www.camba.org/programs/legalservices/immigrationlegalservices
Catholic Charities- Immigration and Refugee Service
Archdiocese of New York
1011 First Avenue
New York, NY 10022
(888) 744-7900
https://cccsny.org/
Hebrew Immigrant Aid Society
411 Fifth Avenue, Suite 1006
New York, NY 10016
(212) 967-4100
LGBT Bar Association of Greater New York (LeGaL)
601 West 26th Street, Suite 325-20
New York, NY 10001
Immigration, Criminal, Employment and Family
(212) 353-9188
https://www.lgbtbarny.org/
Central America Legal Assistance
240 Hooper Street
Brooklyn, NY 11211
(718) 486-6800