The term “adjustment to status” is often used within the immigration world. This means exactly how it sounds; one is adjusting their status within the United States. When someone begins and finishes applying for a green card while in the United States, they are adjusting their status from temporary to permanent resident. For those who have begun the process but must complete it outside of the US, we use the term “consular processing.”
When you enter the United States by going around a checkpoint, you are generally entering without inspection (EWI). EWI and “illegally” do NOT mean the same thing. It is important to note that if you enter without inspection but encounter a border officer later, it does not change your EWI status.
Consular processing is the process by which anyone outside of the United States, and those already in the US who are ineligible to process their application within this country, apply for permanent residency. When going through this process, a relative or employer can file a petition on your behalf that will then be processed through the US consulate in your home country. If eligible, you will receive an immigrant visa. Once you enter the country with that visa, you will become a permanent resident of the United States.
Even if you are already within the United States, you may still have to leave the country and apply for permanent residency in your home country. How you can apply for your green card depends on two factors: how you entered the U.S. and, in some cases, if you are out of status on the day you apply. All those who entered without inspection, and some of those who are not in status on the date they apply for permanent residency, must return to their country to apply. However, there are a few exceptions, including if you qualify for the 245(i) exemption.
The ten-year bar applies to those who are in the United States without status for over one year, and then depart the country. If you’ve accrued unlawful presence and leave the US, you’ll have to wait outside of the country for ten years before applying to re-enter. However, some waivers can be filed to prevent this. If you can prove a US citizen or permanent resident parent or spouse will experience hardship during those ten years, you may qualify for the I-601 or I-601A waiver.
Before an employer can sponsor an employee, the employer is often required to show they’ve received a labor certification. To do this, the employer must apply for a prevailing wage determination, in which the Department of Labor reviews the job description and sends back what they believe is the average wage for the position. The job must then be correctly advertised in an attempt to recruit Americans. If there are no qualified applicants, a PERM application can be submitted. Once it has been determined that all steps have been correctly completed, employers can sponsor their employees’ lawful permanent residence.
Habeas, or Habeas Corpus, is the legal procedure that keeps the government from detaining a person indefinitely without showing cause. For immigrants, it’s the process of challenging prolonged detention, specifically after a deportation order after losing their case in immigration court. Sometimes, deportation can take several months to years. However, the Supreme Court ruled that being detained for longer than six months is unreasonable without cause. Detention can be challenged by filing a petition for Habeas Corpus in federal court, where the judge then determines if the government must release the immigrant.
A removal proceeding is the process by which the Department of Homeland Security tries to deport someone believed to be in the United States in violation of the law. Many of those in the U.S. in violation of the law have the right to removal proceedings. During removal hearings, two questions are answered: is the immigrant removable? And, if so, is he or she eligible for relief that will allow him or her to stay in the U.S.? An immigration judge hears the case and ultimately makes the final decision.
A master calendar hearing is the first hearing in removal hearings before an immigration judge. This hearing is important due to the decisions that can be made. While this hearing gives the person ordered to appear the opportunity to tell the court why they can and should remain in the US, it also gives the judge the opportunity to discuss preliminary issues about the case, as well as make important decisions, such as setting another hearing, ordering removal, or denying an application for relief.
A writ of Mandamus is a lawsuit filed in federal court to compel a government official to perform his or her duty. In immigration, this is often used to compel the Immigration Service to decide an application that has been pending for a long time. In order to file, your lawyer must be able to prove, among other things, the following: that the agency has the duty to decide the application, that you have the right to have the application decided, and that the delay is unreasonable. After hearing from both sides’ attorneys, a judge may order the agency to decide the application.