What is Adjustment of Status?

Adjustment of Status is the process used by certain people already in the United States to apply for a green card without having to leave the country. It allows an applicant to move from a temporary nonimmigrant status to lawful permanent resident status inside the U.S., instead of completing the process through a U.S. consulate abroad, which is known as consular processing.

EWI stands for “Entry Without Inspection.” It describes entering the United States without going through an official port of entry or being inspected by an immigration officer. Even if a person later encounters or is processed by border officers, the original entry is still considered EWI. This is a specific legal concept and is not the same as simply saying someone entered the country “illegally.”

What is Consular Processing?

Consular processing is the procedure used when a person applies for U.S. permanent residency through a U.S. embassy or consulate outside the United States. A qualifying family member or employer files a petition, and once it is approved and a visa is available, the applicant completes the immigrant visa process at the consulate in their home country. After entering the United States on that immigrant visa, the person becomes a lawful permanent resident.

Why Do I Have to Consular Process?

Some applicants must complete their green card process outside the United States because of how they entered the country or their immigration status at the time they apply. People who entered without inspection and certain individuals who are out of status on the filing date are often required to leave the U.S. and apply at a consulate in their home country. There are limited exceptions, such as qualifying for relief under section 245(i), that may allow processing inside the United States.

What is the Ten-Year Bar?

The ten-year bar applies to individuals who accrue more than one year of unlawful presence in the United States and then depart. Once they leave, they become inadmissible and are generally barred from returning for ten years. In some cases, a waiver may be available. If the applicant can show that a U.S. citizen or lawful permanent resident spouse or parent would suffer extreme hardship if they had to remain outside the country, they may qualify for a waiver such as Form I-601 or I-601A.

What are PERM Applications?

PERM is the employment-based labor certification process that many U.S. employers must complete before sponsoring a foreign national for permanent residence. The employer first obtains a prevailing wage determination from the Department of Labor and then conducts specific recruitment steps to see if there are qualified U.S. workers available for the position. If no qualified U.S. workers are found and all requirements are met, the employer can file a PERM application. An approved PERM allows the employer to move forward with sponsoring the employee’s green card.

Habeas, short for Habeas Corpus, is a legal procedure used to challenge unlawful or excessively long detention by the government. In the immigration context, it is often used for people who have been detained for a long time, frequently after receiving a removal order, when the government has not carried out the deportation. Through a Habeas Corpus petition filed in federal court, a judge reviews whether there is legal justification for continued detention and can order the person’s release if the detention is found to be unreasonable.

What Are Removal Proceedings?

Removal proceedings are the formal court process in which the Department of Homeland Security seeks to deport someone it believes is in the United States in violation of immigration law. During these hearings, an immigration judge decides two main questions: whether the person is removable and, if so, whether they qualify for any form of relief that would allow them to stay in the United States. The judge hears evidence and arguments from both sides and issues the final decision.

What is a Master Calendar Hearing?

A master calendar hearing is the first hearing in most immigration removal cases. It is a preliminary hearing where the immigration judge handles scheduling and procedural issues, such as confirming the charges, taking pleadings, identifying any applications for relief, and setting future hearing dates. The judge may also make important decisions at this stage, including whether to schedule an individual merits hearing, deny certain applications, or in some cases order removal if appropriate.

What is Writ of Mandamus?

A writ of mandamus is a lawsuit filed in federal court asking a judge to order a government agency or official to perform a legal duty that has been unreasonably delayed. In immigration cases, it is often used when an application or petition has been pending for a long time without a decision. To succeed, the applicant must show that the agency has a clear duty to act, that the applicant has a right to a decision, and that the delay is not reasonable. If the court agrees, it can order the agency to make a decision on the case.

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Jul 28, 2020

By Kriezelman Burton and Associates

FAQs About the Public Charge Rule

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The Public Charge Rule mandated by the U.S. Citizenship and Immigration Services (USCIS) states that immigrants coming to the United States cannot rely financially on the government to support them. The public charge rule applies to all individuals coming into the United States, but it is largely misunderstood. Below are some of the most frequently asked questions surrounding the public charge rule and their answers.

Is the Public Charge Rule New?

The public charge rule is not new. Congress passed the law in 1882, and it has been in place since that time. However, the USCIS made the rule more restrictive in early 2020. The new rule is more restrictive than it was in the past, as it requires a test that considers the totality of the circumstances to determine if an immigrant is likely to become a public charge at any time after they enter the United States.

How is it Determined if a Person is a Public Charge?

When determining if a person is a public charge, the USCIS considers each case individually and applies the determination test that has two distinct parts. The first determines if the person has received a public benefit at any time in the past. The second part of the test is much more vague, as it only considers whether the individual is likely to become a public charge in the future.

What Public Benefits Deem a Person a Public Charge?

Not all public benefits deem a potential immigrant as a public charge. The benefits that make a person ineligible include:

Supplemental Security Income
Section 8 Housing Assistance under the Housing Choice Voucher Program
Section 8 Project-Based Rental Assistance
Public housing under Section 9 of the U.S. Housing Act of 1937
Temporary Assistance for Needy Families
Medicaid

To be considered a public charge, a person must receive these benefits for 12 months out of a 36-month period.

Which Benefits are Not Considered Under the Public Charge Rule?

Again, certain benefits do not deem someone as a public charge. Benefits that will not affect a person’s immigration status include:

Emergency Medicaid
School-based services
Pregnancy benefits
Services offered under the Individuals with Disabilities Education Act
Benefits for people under the age of 21

Intending immigrants can receive these benefits without fear of having their status impacted.

Who can be Deemed a Public Charge?

Many people think that all immigration applicants are subject to the public charge rule, but that is not true. Certain applicants are exempt from the public charge rule, including:

Asylees
U Visa applicants
VAWA applicants
Refugees
T Visa applicants
Special immigrant juveniles
Amerasian immigrants
Applicants under certain acts, including the Cuban Adjustment Act
Afghan and Iraqi special interpreters

Our Illinois Immigration Lawyers can Help With Your Case

People need financial support from time to time, which is what makes the public charge rule so difficult. If you need help determining if you are considered a public charge, or with any other aspect of your case, call our Chicago immigration lawyers at Kriezelman, Burton & Associates, LLC. We will help you through the complicated immigration system and give you the best chance of success with your case. Call us today or contact us online to schedule a consultation with one of our experienced attorneys.

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I just wanted to take a moment to thank you for all your help and professionalism throughout my green card and citizenship process. Your guidance has made everything much easier to understand, and I truly appreciate how patient, thorough, and responsive you’ve been with every question I had. I’m very grateful for your support and the quality of your work. I would gladly recommend your services to anyone who needs…

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My experience with Kriezelman Burton & Associates was excellent. We worked with Jennifer Peyton, for removal proceedings due to being detained by ICE. Jennifer worked diligently and was responsive. Jennifer was supportive throughout the whole process and showed compassion. With the help of Jennifer and the help of the firm, we were able to get the removal proceedings stopped and received permanent residency. I am so thankful for Kriezelman Burton…

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I recently had the privilege of working with Attorney Brittni Rivera of Kriezelman, Burton & Associates on a habeas corpus case. From the very beginning, she demonstrated exceptional knowledge, integrity, and attention to detail. She was consistently responsive—always just an email away—and made me feel supported through every step of the process. Her guidance brought clarity during a very difficult time, and I am truly grateful for her dedication and…

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My God, if I could give 10 stars, I would. My family and I are so grateful, first and foremost to God and to attorney Brittni Rivera, who helped us free my husband. He was detained by ICE in Chicago and transferred to Michigan. The process after hiring attorney Brittni Rivera took only 15 days, when I was given about a month. It was incredibly fast and effective.

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Our family is sincerely grateful to attorney Nicole M. Provax from Kriezelman Burton & Associates, LLC for her professionalism, dedication, and support, as she guided us through every step with care and understanding. Thanks to her guidance, our case reached a positive outcome. We truly appreciate everything she has done for our family and highly recommend her and the firm.

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312-332-2550

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FAQs About the Public Charge Rule

Looking for A Specific Post? Search Below

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Is the Public Charge Rule New?

How is it Determined if a Person is a Public Charge?

What Public Benefits Deem a Person a Public Charge?

Which Benefits are Not Considered Under the Public Charge Rule?

Who can be Deemed a Public Charge?

Our Illinois Immigration Lawyers can Help With Your Case