How to Use This Resource
Use this reference to get oriented before accompanying someone to a legal consultation, to understand what an attorney is recommending, or to help community members identify whether they may have options worth exploring with a qualified immigration lawyer. Never use it to give legal advice.
U.S. Citizenship
An LPR can apply for U.S. citizenship after five years LPR status, or three years of marriage to a USC while an LPR; must establish good moral character and should not be deportable. But some current and former military personnel can naturalize without being LPRs.
Acquisition or Derivation of U.S. Citizenship
If the answer to any question is yes, client could be a USC or national.
- Was the client born in the United States or its territories? Or,
- At time of his or her birth abroad, did client have a USC parent or grandparent? Or,
- Before age of 18, in either order: did client become an LPR, and did one of client’s parents naturalize to U.S. citizenship? Or, was the client adopted by a USC before the age of 16 and became an LPR before age 18?
LPR Cancellation
Client must be an LPR who (a) does not have an aggravated felony conviction; (b) has been an LPR for at least five years; and (c) has lived in the U.S. for at least seven years since being admitted in any status (e.g. as a tourist, LPR, border crossing card).
Former 212(c)
An LPR whose convictions pre-date April 24, 1996 might be eligible for the former 8 USC § 1182(c), INA § 212(c), even if the conviction(s) are aggravated felonies. Screen for this relief if client is an LPR who is deportable based on one or more convictions for an aggravated felony, or other deportable offense, that occurred before April 24, 1996. Section 212(c) might be available for a conviction occurring between April 24, 1996 and April 1, 1997.
Immigrating Through Family:
Client might apply for a green card if has: (a) USC spouse; USC child at least age 21; or USC parent if client is unmarried and under age 21 (“immediate relative”); or (b) LPR spouse; LPR parent if client is unmarried; USC parent if client is at least age 21 and/or married; or USC sibling (“preference”). To immigrate through family the person must be “admissible.” That means either she must not come within any of the grounds of inadmissibility at INA § 212(a), or if she comes within one or more inadmissibility grounds, she must qualify for and be granted a waiver of the ground(s). One can consular process outside the U.S. or “adjust status” if within the U.S. and meets the requirements at INA §245. Adjustment can be a defense for LPRs facing deportation, as well as for those who are undocumented and are seeking LPR status.
DACA-Deferred Action for Childhood Arrivals
Client entered U.S. before turning 16 and before 6/15/2007, and is in or could enroll in certain educational programs or military. At the time of this manual’s writing, DACA initial applications are no longer accepted, but DACA recipients can continue to renew DACA. As the DACA program is in flux, check www.ilrc.org/DACA for updates.
Cancellation of Removal for Nonpermanent Residents
To be eligible for this defense in removal proceedings, client must have lived in U.S. at least ten years and have a USC or LPR parent, spouse or child, and not have a conviction for a deportable or inadmissible crime. The client must show that the family member(s) will suffer exceptional and extremely unusual hardship. The client must also be able to show good moral character for the ten years prior to decision and warrant cancellation in discretion.
Suspension of Deportation
This relief might permit an undocumented person with old convictions—even old drug convictions—to become a lawful permanent resident. This is a defense under pre-1997 deportation proceedings that can be applied for in removal proceedings arising in the Ninth Circuit Court of Appeals; other circuit courts of appeals may not have considered the issue. The Ninth Circuit indicated that a noncitizen still may apply for suspension of deportation today in removal proceedings, if he was convicted of a deportable offense before April 1, 1997.
VAWA Relief
Your client, or certain family member/s, have been abused (including emotional abuse) by a USC or LPR spouse, USC or LPR parent, or adult USC child. (If abuser is not a USC/LPR, consider U Visa, below.)
Special Immigrant Juvenile Status
This relief is for juveniles only, and the petition must be filed by age 21. Client must obtain a state court order (from delinquency, dependency, probate, family court, etc. proceedings) that they can’t be returned to at least one parent due to abuse, neglect, or abandonment.
U Visa
Client must have been a victim of a serious crime, such as DV, assault, false imprisonment, extortion, obstruction of justice, or sexual abuse, and be or have been willing to cooperate in investigation or prosecution of the crime.
T Visa
Client must have been victim of (a) sex trafficking of persons (if under age 18, could have been consensual), or (b) labor trafficking, including being made to work by force, fraud, etc.
Asylum, Withholding of Removal and Convention Against Torture
If client fears harm that amounts to persecution or even torture if returned to the home country, consider all above forms of humanitarian protection. Asylum is preferable, because after one year the person can apply for lawful permanent residence. An asylum applicant (a) must submit the application within one year of entering the U.S., absent extraordinary or changed circumstances, (b) faces stricter bars based upon criminal convictions, (c) can be denied asylum as a matter of discretion, and (d) only needs to prove a “well-founded fear” of persecution (interpreted as a 10% likelihood). There are various bars to asylum and withholding.
TPS
Noncitizens from certain countries that have experienced a devastating natural disaster, civil war or other unstable circumstances may be able to obtain Temporary Protected Status (TPS). See www.uscis.gov/humanitarian/temporary-protected-status for list of countries and requirements. There a certain bars, including any two misdemeanors or one felony.
NACARA
Your client might be eligible if he/she (a) is from the former Soviet bloc, El Salvador, Guatemala, or Haiti; and (b) applied for asylum or similar relief in the 1990’s or is a dependent of such a person. Certain nationals from El Salvador, Guatemala, or former Soviet bloc countries who applied for asylum or similar relief in the early 1990’s are eligible to apply for lawful permanent resident status (a green card) under the 1997 Nicaraguan Adjustment and Central American Relief Act (NACARA). See 8 CFR §240.60-65. They can apply for a special form of suspension or cancellation of removal now, under the more lenient suspension of deportation standards that were in effect before April 1, 1997. Persons who became deportable or inadmissible for a criminal offense more than ten years before applying for NACARA can apply under the lenient rules governing the former “ten-year” suspension, except that an aggravated felony conviction is an absolute bar to NACARA. Family members of these persons also may be eligible to apply.
Published by the Immigrant Legal Resource Center (ILRC) — a national nonprofit providing legal trainings, educational materials, and advocacy to advance immigrant rights.