Do I Have a Path to Legal Status in the United States?

Do I Have a Path to Legal
Status in the United States?
William S. Boyd School of Law
Fall 2021
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 COVID-19 caused some changes and delays
with immigration court.
 If you have a filing deadline, make sure to
meet it.
 To check on your case, please call EOIR
hotline: 1-800-898-7180
Notice: Immigration Court
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 COVID-19 has also caused some changes
and delays with USCIS.
 USCIS is still continuing with processing
cases.
 https://www.uscis.gov/contactcenter for
emergency services and information.
Notice: USCIS
4

 https://www.uscis.gov/about-us/uscis-
response-coronavirus-2019-covid-19
 Please review the requirements and guidance
presented.
Notice: USCIS
5

 To provide you with credible information
regarding potential pathways to legal status.
You may learn that there is no pathway
available for you.
 To provide you with resources that may help.
Purpose of this Class
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 You may attend this class as many times as
you want.
 You may sign up for a free consultation with
an attorney at the end of the class.
Purpose of this Class
7

 Beware of notarios. Notarios are not trained
attorneys and have defrauded individuals in
our community. They might try to sell you a
path that doesn’t exist. Attorneys can assist
you with completing forms and providing
legal advice; however, notarios can only
assist with completing forms and cannot
provide legal advice.
Warning
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If you have been cited, arrested or convicted
of a crime, you should speak with an attorney
before filing any immigration documents.
If you entered the country without inspection,
you should speak with an attorney before filing
any immigration documents.
Warning
9

 Undocumented - refers to someone with no
legal permission from the U.S. government to be in
the United States.
 Lawful Permanent Resident (LPR) - any
person not a citizen of the U.S. who is residing in
the U.S. under legally recognized and lawfully
recorded permanent residence; green card holder
Terminology
10

 U.S. Citizen (USC) - person who by place of
birth, nationality of one or both parents, or by going
through the naturalization process has sworn
loyalty to the U.S.
 U.S. National – This refers to someone from
American Samoa or Swain Island. This person is
not a U.S. citizen.
Terminology
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 United States Citizenship and Immigration
Services (USCIS) – Government agency that
processes applications for immigration relief.
 Immigration and Customs Enforcement
(ICE) – Government agency that enforces
immigration law. “Immigration Police”
 United States Customs and Border
Protection (CBP)-Law enforcement
organization charged with keeping borders
protected.
Terminology
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 Deferred Action – The discretionary ability of
the government to defer deportation of an
individual. It allows individuals to apply for
employment authorization. There is no direct path
from deferred action to lawful permanent residence
or to citizenship. And, it can be revoked at any
time.
Terminology
13

Focused effort to those who are greatest
threats.
When making enforcement decisions, the
officers should obtain and review the entire
criminal record, administrative record, and any
other investigative information available, to
include both aggravating and mitigating factors.
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President Biden’s Enforcement Priorities

It is important that undocumented individuals
know their rights.
Know Your Rights
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 You have the right to remain silent. You may
refuse to speak to immigration officers.
 You don’t have to open the door to your
home unless the officer has a warrant signed
by a judge. You have a right to see the
warrant before they enter your home.
Know Your Rights
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 You have the right to speak with an attorney.
 You should always carry with you any valid
immigration documents you have.
 Know whether there is form of immigration
relief available to you.
Know Your Rights
17

 Be prepared and know what will happen to
your children and property if you are
detained.
 Create a safety plan which includes
memorizing important numbers and
safekeeping of your important documents.
Know Your Rights
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1) You have a family member who has legal
status.
2) You were abused by your spouse, child or
parent.
3) You were the victim of domestic violence,
sexual assault or other specified crime.
You may have a path to citizenship if:
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4) You were the victim of human trafficking.
5) You left your country because of persecution
or fear of persecution due to your race, religion,
nationality, political opinion, or membership in
a particular social group.
You may have a path to citizenship if:
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This might apply if you have a parent, child, husband,
wife or sibling that is either a United States citizen or
lawful permanent resident.
1) Family Petition
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Step One: The Petition (Form I-130, Petition for Alien Relative)
Only a United States citizen or lawful permanent resident can
file a petition on behalf of a family member. The individual
filing the petition is called the petitioner. The family member
who is going to immigrate is called the beneficiary.
The Petitioner must demonstrate a family relationship exists
(parent and child, spouses, siblings).
• Birth certificates and marriage licenses
• A married couple may also have to show the marriage is bona fide.
1) Family Petition Overview & Requirements
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Step Two: Application to Immigrate
A person qualifies as an immediate relative of a United States
Citizen if he or she is the spouse or child of a United States
Citizen, or the parent of a United States Citizen who is at least
21 years old.
Visas are always available for immediate relatives of United
States Citizens, allowing the beneficiary to immigrate without
waiting for a visa to become available.
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Other relatives of United States citizens and lawful permanent
residents can immigrate if they qualify for a visa under the
preference system. The number of people who can immigrate
each year under the preference system is limited. Thus, a
beneficiary may have to wait several years before he or she can
immigrate.
https://travel.state.gov/content/travel/en/legal/visa-law0/visa-
bulletin.html
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All petitioners must meet the income guidelines for the
required affidavit of support.
Household Size 125% Poverty Guidelines
2 $21,775
3 $27,450
4 $33,125
5 $38,800
6 $44,475
7 $50,150
8 $55,825
*Add $5,675 for each additional person
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If you are unable to meet the income guidelines, you can have
a co-sponsor. The co-sponsor’s household will be included to
determine the combined yearly income for the two sponsors.
When you sign the affidavit of support, you accept legal
responsibility for supporting the sponsored immigrant until
either: 1)the immigrant becomes a U.S. citizen;
2)the immigrant has 40 quarters of work;
3)the immigrant dies; or
4)the immigrant leaves the U.S.
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If an immigrant you sponsored received any means-tested
public benefit, you are responsible for repaying the cost of the
benefit to the agency that provided the benefit.
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Step Two: Application to immigrate
If you are a United States citizen or Lawful Permanent
Resident and the family member you are petitioning for is
unlawfully present in the U.S., you are not barred from
petitioning for that family member, but should consult an
attorney to discuss the implications of their unlawful presence.
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People can immigrate in one of two ways: by applying for an
immigrant visa through consular processing in another country
at a U.S. consulate or by applying for adjustment of status at a
USCIS office in the United States.
When the beneficiary applies to immigrate, he or she must be
admissible. This means no ground of inadmissibility applies. If
grounds of inadmissibility exist, the beneficiary may still be
able to immigrate if a waiver is granted.
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Some married couples will have to go through a third step.
The beneficiary may receive a Lawful Permanent Resident card
with a condition attached to it that must be removed at the
expiration of two years. The couple must petition jointly to
remove that condition. The beneficiary may petition alone to
remove the condition under certain limited circumstances.
30

Derivative Beneficiaries:
People who immigrate under the preference system can have
their children and spouses immigrate with them on the same
petition to keep the family together.
There are no derivative beneficiaries of immediate relatives.
Anyone who immigrates as an immediate relative must qualify
in his or her own right and the petitioner must file separate visa
petitions for each person.
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This might apply if you were subject to battery or extreme
cruelty by your USC or LPR spouse , parent or USC child.
2) Violence Against Women Act (VAWA)
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An abused spouse, child or parent of a USC or LPR may file a
self-petition for immigration relief without the abuser’s
involvement. (I-360, Petition for Amerasian, Widow(er) or
Special Immigrant
There is no limit on the number of VAWA petitions approved
each year.
VAWA is not limited to women.
Victims do not have to be separated from their abuser to
qualify for VAWA
2) VAWA Overview & Requirements
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If you are leaving an abusive relationship, it is important to
have a safety plan. You may also want to gather important
documents prior to leaving, if possible.
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If you are the spouse of an abusive LPR/USC:
You were abused by your Lawful Permanent Resident or
United States citizen spouse.
You may include your unmarried children under 21 if they
have not filed for themselves.
Must demonstrate the following:
• The status of your spouse
• Good faith marriage; must be valid; common law marriage is not
valid
• You resided with your spouse.
• You suffered battery and/or extreme cruelty by your spouse.
• You are a person of good moral character.
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If you are the parent of an abusive USC:
You were abused by your United States citizen child who is at
least 21 when the petition is filed.
• The status of your child
• You resided with your child.
• You suffered battery and/or extreme cruelty by your child.
• You are a person of good moral character.
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If you are the child of an abusive USC/LPR:
You are under 21 and unmarried and were abused by your
USC or LPR parent. You may include your children on your
petition. You can file after 21 but before 25, if you can
demonstrate that the abuse was the reason for the delay in filing.
• The status of your parent
• You resided with your parent.
• You suffered battery and/or extreme cruelty by your parent.
• You are a person of good moral character. A child under 14 is
presumed to have good moral character.
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 The ability to remain in the U.S. legally.
 The ability to obtain an employment authorization
document (EAD) to work legally; EAD is renewable each
year.
 If the abuser is a United States citizen, you can also apply
for adjustment of status concurrently.
2) Benefits of VAWA
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 If your abuser is a Lawful Permanent Resident, you must
wait for your priority date to become current before you
can apply for adjustment of status. You will have
deferred action status based on your approved VAWA
while you wait for your priority date.
 Everyone may not be able to adjust status. If a ground of
inadmissibility is present, you may be barred from
adjusting status.
 Provides path to citizenship.
2) Benefits of VAWA
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This may be an option for you if you were a victim of a crime,
suffered substantial physical or mental abuse as a result of the
crime, and cooperated in the investigation of the crime. (Form I-
918, Petition for U Nonimmigrant Status)
3) U Visa
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 The U Visa provides status to victims of certain serious
crimes who have suffered substantial physical or
mental abuse as a result of the crime. Only 10,000 are
issued each year. Once the 10,000 visas are issued, an
individual can be granted deferred action until a visa
becomes available.
 Due to the amount of pending applications and the limit
of U Visas issued each year, there is a substantial wait
time for U Visa case processing
3) U Visa Overview & Requirements
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 USCIS has established a process to determine whether
applications are bona fide. The goal is to provide
employment authorization documents to applicants
sooner in the process. Once USCIS deems that an
application is bona fide, the applicant can apply for an
employment authorization document. This
determination doesn’t mean that your case will be
approved.
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 Must be the victim of a qualifying criminal activity
 The crime must have occurred in the U.S. or
violated U.S. laws.
 Must have suffered substantial physical or mental
abuse as a result of having been a victim of the
criminal activity.
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 Must be helpful or likely to be helpful to law
enforcement in the investigation or prosecution of
the crime.
 Must obtain certification from law enforcement or
other agency
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If you are an indirect victim, you might also qualify
for the U Visa. An indirect victim is a family member
who doesn’t suffer the physical harm, but meets the
other requirements.
If you are under the age of 16 or unable to provide
information due to a disability, a parent, guardian, or
next friend may assist law enforcement on your behalf
and may qualify as an indirect victim.
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Includes any similar activity when the elements of the crime are substantially
similar.
Includes attempt, conspiracy or solicitation to commit any of the above crimes.
3) Qualifying Criminal Activity
Abduction Extortion Fraud in
foreign labor
contracting
Kidnapping Peonage Sexual
Assault
Torture
Abusive
Sexual
Contact
False
Imprisonment
Hostage Manslaughter Perjury Sexual
Exploitation
Trafficking
Blackmail Female genital
mutilation
Incest Murder Prostitution Slave Trade Witness
Tampering
Domestic
Violence
Felonious
Assault
Involuntary
Servitude
Obstruction of
Justice
Rape Stalking Unlawful
Criminal
Restraint
Abduction
False
Imprisonment
Incest
Obstruction of
Justice
Sexual Assault Trafficking
Abusive
Sexual Contact
Female Genital
Mutilation
Involuntary
Servitude
Peonage
Sexual
Exploitation
Witness
Tampering
Blackmail
Felonious
Assault
Kidnapping Perjury Slave Trade
Unlawful
Criminal
Restraint
Domestic
Violence
Fraud in
Foreign Labor
Contracting
Manslaughter Prostitution Stalking
Extortion Hostage Murder Rape Torture
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3) Substantial Physical or Mental Abuse
Did you have
pain?
If you were
already sick, did
the crime make it
worse?
Did it affect how
you look?
Did you have to
miss work?
Did you have to
go to the doctor?
Did you have to
take medicine?
Were you
anxious or
depressed?
Did you see a
therapist?
Did you have
trouble eating or
sleeping?
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Your personal declaration will detail the substantial physical
and/or mental abuse that you have suffered. Other evidence of
the abuse may include:
•Medical records
•Police report
•Court records
•Pictures
•Statements from 3rd parties
3) Substantial Physical or Mental Abuse
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3) Did you help law enforcement?
Did you call the
police and
report the
crime?
Did you answer
questions posed
by the police?
Did you allow
the police to
take photos?
Did you talk to
the prosecutor?
Did you appear
in court?
49

The certifying agency must sign a certification known as the I-
918, Supplement B. The certifying agency can withdraw the
certification if you stop cooperating with the investigation.
The certifying agency is merely certifying that you were helpful
in the investigation of the crime. They are not advocating for
you to gain immigration status.
The certification is only valid for six (6) months. United States
Citizenship and Immigration Services (USCIS) may request that
you obtain a new certification.
3) Did you help law enforcement?
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 You can petition for certain family members. If you are 21
or older, you can petition for your spouse and unmarried
children under the age of 21. If you are under 21, you can
apply for your spouse, children, parents and unmarried
siblings under 18.
 You can remain legally in the U.S. for four (4) years.
 You can work legally in the U.S. for four (4) years.
3) Benefits of U Visa
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You can become a Lawful Permanent Resident at the
expiration of three (3) years with the U Visa.
Provides path to citizenship.
3) Benefits of U Visa
52

This may apply to you if you were brought to the United States
as a victim of human trafficking. (Form I-914, Application for T
Nonimmigrant Status)
4) T Visa
53

The T Visa provides status to victims of human trafficking. Only
5,000 are issued each year.
Must be the victim of human trafficking
Must have arrived in the U.S. or a U.S. territory as a result of the
human trafficking
Must comply with any reasonable request from a law
enforcement agency for assistance in the investigation or
prosecution of the human trafficking. It is preferred that you obtain
certification from law enforcement or other agency.
Demonstrate that you would suffer extreme hardship if you were
removed from the U.S.
4) T Visa Overview & Requirements
54

 You can petition for certain family members. If you are 21
or older, you can petition for your spouse and unmarried
children under the age of 21. If you are under 21, you can
apply for your spouse, children, parents and unmarried
siblings under 18.
 You can remain legally in the U.S. for four (4) years.
 You can work legally in the U.S. for four (4) years.
4) Benefits of T Visa
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You can become a Lawful Permanent Resident at the
expiration of three (3) years.
Provides a path to citizenship.
4) Benefits of T Visa
56

This may apply to you if you fled your country because you were
afraid of persecution due to your race, religion, nationality,
membership in a particular social group or political opinion. (Form
I-589, Application for Asylum and for Withholding of Removal)
5) Asylum
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 Asylum is a form of protection from removal to a country of
feared persecution of an individual due to his or her
– race;
– religion;
– nationality;
– membership in a particular social group;
– or political opinion
 Asylum allows an eligible refugee to remain in the United
States and eventually to become a lawful permanent resident.
5) Asylum Overview & Requirements
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You must apply for asylum within one year of your last
arrival in the United States. Limited exceptions are available.
You can apply for withholding of removal after one year if you
can show that there is a clear probability of persecution if you
were returned to your country.
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There are two (2) processes for applying for asylum.
Affirmative Asylum - processing occurs with United States
Citizenship and Immigration Services. This option is for those
not in removal proceedings.
Defensive Asylum - processing occurs with an Immigration
Judge when you request asylum as a defense against removal
from the U.S.
5)Asylum Overview & Requirements
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Affirmative Asylum
You must file your Asylum Application with United States
Citizenship and Immigration Services (USCIS).
USCIS will issue you an Interview Notice with an asylum
officer at an asylum office or a USCIS field office.
After interview, you will receive a decision on your case
either by mail, or by picking up the decision at an asylum
office.
61

Affirmative Asylum
If your application is denied, you could be placed in removal
proceedings.
Please note that due to the amount of asylum applications
being received, there is a priority system. USCIS is currently
unable to predict how long processing will take.
62

Defensive Asylum
You must file your Asylum Application with the Immigration
Judge handling your removal case.
The Immigration Judge will then set a date for an individual
hearing, similar to a trial.
You must present evidence to support your asylum claim.
DHS will have an attorney representing the government that
will question you about your case.
63

Defensive Asylum
 The Immigration Judge will make the decision on your
asylum case.
 If you are denied asylum by the Immigration Judge, you may
be ordered removed from the United States.
 You may appeal a denial by filing a Notice of Appeal within
30 days of the decision.
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In both Asylum processes:
You can include your spouse and children under 21 and
unmarried who are present in the U.S. at the time you file or any
time until a final decision is made.
If your spouse and/or children are out of the country, you can
petition for them if you are granted asylum. You must file the
petition within two (2) years of being granted asylum.
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 While your asylum application is pending, you may apply
for a work permit IF:
 365 days have passed since you filed your asylum application,
excluding any delays caused by you AND
 No decision has been made on your application
 If you are granted asylum, you may work immediately. A
work permit is not necessary to work if you have asylum.
 You may apply for Lawful Permanent Resident Status one
(1) year after being granted asylum.
 Provides a path to Citizenship
5) Benefits of Asylum
66

 You are a citizen if you were born in the U.S. or its territories
of Puerto Rico, the U.S. Virgin Islands, Guam or the
Northern Mariana Islands.
 You may have acquired citizenship at birth if one or both of
your parents were citizens at that time and you were born
outside of the U.S.
 If one or both parents became naturalized U.S. citizens
before you were 18 years old, you may have derived
citizenship.
 Immigrants can become United States citizens through a
process called naturalization (Form N-400, Application for
Naturalization)
Citizenship
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Requirements for Naturalization:
1.Be at least 18 years old.
2.Be a lawful permanent resident for 5 years (3 years if you are
married to a U.S. citizen).
3.Have made the United States your continuous residence for 5
years (3 years if you are married to a U.S. citizen).
4. Have been in the United States for at least half of the 5
years (3 years if you are married to a U.S. citizen) before
applying for naturalization.
Citizenship
68

5.Pass a test on speaking, understanding, reading and writing
basic English. This means you must be able to demonstrate to
the officer that you understand English. A basic understanding
of English will not be sufficient. You will also have to write a
sentence in English and spell all of the words correctly.
6.Pass a United States history and government test. You will be
asked 10 questions and must answer 6 correctly.
7.Have good moral character.
Citizenship
69

8.Understand and accept the oath of allegiance to the United
States.
9. Have no legal problems related to your immigration status.
Citizenship
70

Continuous Residence:
Continuous residence means that you have made the U.S.
your main home through the required period of time. Trips out
of the country for less than six (6) months do not break your
continuous residence.
Living outside of the United States for one year or more as a
LPR will be seen as abandonment of residence unless you
received permission to re-enter the U.S. prior to leaving.
Citizenship
71

Good Moral Character:
Good moral character includes truthfulness throughout the
naturalization process and a lack of certain criminal issues.
Good moral character also includes paying taxes and any/all
child support payments.
You must have good moral character for the 5 years (or 3
years if married to a U.S. citizen) before you apply for
naturalization, although USCIS may consider behavior outside
that period of time.
Citizenship
72

Good Moral Character:
You may be able to correct some problems and reapply. You
will have to wait 5 years (or 3 years if married to a U.S. citizen).
Some problems may create a permanent bar to citizenship.
Citizenship
73

Oath:
If your religion and beliefs do not allow you to bear arms in
defense of the United States or you do not believe in taking an
oath, you can ask to take a modified oath.
Citizenship
74

Test Exemptions:
Some people do not have to take the English test. You can
complete your interview and the U.S. history and government
test, in your own language if you are:
• Age 50 or older and have lived in the U.S. as an LPR for
at least 20 years;
• Age 55 or older and have lived in the U.S. as an LPR for
at least 15 years;
• You have a medical disability that prevents you from
meeting the English requirement.
Citizenship
75

Test Exemptions:
If you are age 65 or older and have lived in the U.S. as an
LPR for at least 20 years, you can take the tests in your native
language and are only required to study 20 of the 100 civics test
questions for the naturalization test.
Some people are not required to take the U.S. history or
government test at all:
• You cannot meet the U.S. history or government
requirement because of a medical disability
Citizenship
76

Benefits of becoming a U.S. citizen:
Right to immigrate family members
Derivative citizenship for children
Full civic participation (i.e. voting and jury duty)
More employment and educational opportunities
Travel benefits
Public benefits
Protection from deportation
Benefits of Citizenship
77

 In compliance with a U.S. District Court decision from
Texas, a court held that DACA is unlawful and no
new applications can be accepted.
 DACA renewal applications continue to be accepted
and processed.
 Form I-821D, Consideration of Deferred Action for
Childhood Arrivals, Form I-765, Application for
Employment Authorization and Form I-765Worksheet
must be submitted for renewal requests.
 Uncertainty around this program continues.
Deferred Action for Childhood Arrivals (DACA)
78

Temporary Protected Status is granted to individuals from
certain designated countries due to conditions in the
country that prevent the individual from returning safely
(Ex. Civil war, environmental disaster)
Applicants file Form I-821, Application for Temporary
Protected Status, to apply for TPS or TPS re-registration
Temporary Protected Status
79

Countries currently designated for Temporary Protected
Status:
1. Burma (Myanmar)-11/25/2022
2. El Salvador*
3. Haiti*
4. Honduras*
5. Nepal*
6. Nicaragua*
7. Somalia-03/17/2023
80

Countries currently designated for Temporary Protected
Status:
8. Sudan*
9. South Sudan-05/02/2022
10. Syria-09/30/2022
11. Venezuela-09/09/2022
12. Yemen-03/03/2023
*The TPS designation is valid as long as the injunction
remains in effect pursuant to Ramos, et. al vs. Nielsen, et.
al.
81

Requirements:
 You must be a national of the designated country.
 You must have been continuously physically present in
the U.S. since the date your country was designated as
a TPS country.
 You must have been continuously residing in the U.S.
since the date specified for your country.
 You must file during the initial registration or re-
registration period.
TPS Status
82

Benefits:
 You can receive an employment authorization
document
 You cannot be detained based on your immigration
status.
 TPS status doesn’t prohibit you from applying for other
immigration remedies.
Benefits of TPS Status
83

Individual Taxpayer Identification Number (ITIN):
 An ITIN is a tax processing number issued by the
Internal Revenue Service.
 All wage earners, regardless of their immigration
status, are required to pay federal taxes.
 Undocumented individuals who are ineligible for a
social security number can file taxes using an ITIN.
Undocumented Individuals & Taxes
84

Individual Taxpayer Identification Number (ITIN):
 Why should undocumented individuals file taxes?
• To comply with federal tax laws
• To document work history
• To document physical presence in the United States
• It is important that you are completely truthful on your tax
returns because immigration can use the information
disclosed against you. If you allow someone else to prepare
your taxes for you, you should review everything before
signing.
85

 Can I get credit for social security payments if I worked
using an unassigned social security number?
• Once an individual receives a valid social security number, he
or she may file amended tax returns. There is a three (3) year
statute of limitations on refunds; however, there is no statute
of limitations on your tax liability.
• Once an individual receives a valid social security number, he
or she can contact the Social Security Administration to
reconcile the discrepancy.
86

Legal Aid Center of Southern Nevada, Inc.
725 E. Charleston Blvd., Las Vegas, Nevada 89104
(702) 386-1070
www.lacsn.org/immigration
Catholic Charities of Southern Nevada
1501 N. Las Vegas Blvd., Las Vegas, Nevada 89101
(702) 385-2662
State Bar of Nevada
3100 W. Charleston Blvd., Las Vegas, Nevada 89102
(702) 382-0504
USCIS Website - www.uscis.gov
All forms are available free of charge
Check Case status and Case processing times
Legal Resources
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