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Family-based immigration
There are several options for bringing a family member to the United States, or adjusting status within the United States, if you qualify. Click on the below options to learn more about the types of cases that we can assist you with.
If you entered the United States with parole or on a visa, and are the spouse, parent, unmarried biological child, adopted child, or stepchild under 21 of a U.S. citizen, you may be able to adjust your status (get a green card) without leaving the United States. If you are not in immigration removal proceedings, you can likely file all of your documents together, including your I-130 petition, your I-485 adjustment of status application, your I-765 work permit application, your I-131 Advance Parole application, and your I-601 waiver application, if necessary. This is called a “one-step” adjustment of status. Currently, adjustment of status takes between a year and two years to complete, although some people are currently seeing very fast timelines for new applications.
If you did not enter legally, you may still be able to adjust in the United States if you are eligible for parole in place (PIP) (see below!). If you an immediate family member of someone who has served in the military, or if you have served in the military, this may be an option for you. Tamber is a veteran of the U.S. Air Force Reserves, and loves finding immigration solutions for veterans and their families.
If you did not enter the United States legally, or you wish to bring a family member to the United States, consular processing might be an option. Consular processing involves several steps, as follows, and can take a year or two to complete.
- First, an I-130 (immigrant visa petition) must be filed.
- After the I-130 is approved, assuming unlawful presence is the only immigration problem you have, you can pay the fee to the National Visa Center (NVC) to start the process of submitting documents to get an interview and a visa. If needed, you can also file an I-601A to request a waiver for being unlawfully present in the United States, if you have been present for more than 180 days without legal status. This must be done before you finish your filings with the NVC and before you leave the country for your visa interview. If you are bringing a family member who has never been to the United States or overstayed, this step is not necessary.
- Then, you will submit your application, including a DS-260 and an Affidavit of Support, with supporting documents, through the Consular Electronic Application Center, or CEAC. Once all your documents have been submitted, the NVC will send your case to the consulate where you will have your interview, and an appointment will be scheduled. You will travel to your home country and complete the steps to be granted an immigrant visa, and you will normally be out of the country for a few weeks to a couple of months before you can return, assuming your visa is granted.
Be sure to consult with an attorney before beginning this process, because if you have any negative criminal or immigration history other than unlawful presence, even if you were never arrested or charged, or if you or an immediate family member have ever received certain types of public benefits (see here for current information from the State Department on the public charge ground of inadmissibility), you could accidentally end up stuck outside the United States for an extended period of time or permanently.
If you are a U.S. citizen, and planning to marry someone who will come to live with you in the United States, you may wish to consider applying for a fiancé visa instead of going through the immigrant visa process. Contact us for a consultation to determine whether it makes more sense to marry your fiancé and complete the immigrant visa process described above, or to apply for a fiancé visa and get married within the United States, completing the adjustment process with your partner as an immediate relative.
Many people come to the United States irregularly, meaning not at an authorized point of entry on the border or through an air or sea port. These people, with few exceptions, cannot adjust their status within the United States.
The United States has recognized that military members and veterans may have family members affected by their inability to regularize their status without leaving the United States to consular process, which may be impractical or impossible. To clear this hurdle of inadmissibility posed by the illegal entry, immediate family members (spouses, unmarried children under 21, and parents) of military members may apply for what is called “parole in place”, creating a fictional legal entry that allows for an adjustment to proceed. If it is not immediately possible for the military family member to adjust (for example, if a visa is not immediately available, or if the family member has a negative immigration or criminal history that cannot be resolved, or if it is not financially possible for you to adjust right away), military PIP also allows for the beneficiary to seek a work permit. Military PIP must be renewed yearly if the beneficiary does not adjust.
If an eligible applicant did not enter illegally, but rather overstayed a visa and is therefore at risk of being removed, deferred action might be an option if adjustment is not available. Deferred action grants two years of authorized stay, and the beneficiary can seek a work permit.
Learn more about special immigration options for military members and their families.
If your specific situation is not listed here, you may still be able to adjust your status or apply for an immigrant visa through a family member. If you fall into one of the below categories (known as ‘preference immigrant categories’), you may still have options to come to the United States or remain in the United States, but it may take longer and/or you may be subject to additional requirements. Contact us for more information.
- First preference (F1) – unmarried sons and daughters (21 years of age and older) of U.S. citizens;
- Second preference (F2A) – spouses and children (unmarried and under 21 years of age) of lawful permanent residents;
- Second preference (F2B) – unmarried sons and daughters (21 years of age and older) of lawful permanent residents;
- Third preference (F3) – married sons and daughters of U.S. citizens; and
- Fourth preference (F4) – brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age and older).
Learn more about the preference categories here.
Family-based Immigration
Detention and Bond
Detention, Release, and Bond
If your friend or loved one is detained, there may be options to get them released. Detention is always an emergency, and when I accept a custody matter, I work quickly and transparently to get my clients released. Below is some of the typical information I share about detention and release to get you started.
Most people are detained because they entered the United States illegally or presented themselves at a port of entry without a visa or other entry permission.
When this happens, they are usually held for processing for up to a week or two by border patrol. Many people, particularly families with children, are released directly by border patrol with instructions to report to ICE and/or to an alternatives to detention program within a certain amount of time.
In other cases, people are held by border patrol and then sent directly back to Mexico or to their country of origin under Title 42, an extraordinary program that is set to end in 2023 with the end of the COVID-19 pandemic. Returns under title 42 are not removals and do not have the same consequences as a removal. Alternatively, border patrol may send people back with an expedited removal order. These are removals and carry serious consequences if a person returns illegally after being returned with one of these.
If the migrant or asylum seeker is not returned by border patrol or released, they may be transferred to ICE custody at one of many detention centers throughout the United States. What happens next depends on whether they arrived in ICE custody with an expedited removal order after expressing fear of return to their country or not. If they have an expedited removal order and have expressed fear, they will then usually be held (with very limited exceptions) until they complete a credible fear interview (or reasonable fear interview, if they have ever been removed from the United States before). If they do not have an expedited removal order, they will receive a Notice to Appear and a date to appear before an immigration judge. ICE may release them at any time, either with a bond or on their own recognizance (promise to report), or they may request a bond hearing before an immigration judge.
There is no way to predict whether a person will be subject to the credible fear process or will be placed into regular removal proceedings. It is not the person’s fault if they are placed in credible fear proceedings instead of regular immigration judge proceedings.
There are many reasons why a person who has already entered the United States may be detained. In all circumstances, it is because someone who is subject to removal, or alleged to be subject to removal, came to the attention of immigration authorities. This can happen at Border Patrol checkpoints, as a result of contact with law enforcement, during reporting appointments with ICE, or sheer bad luck. Depending on the circumstances, the person may be placed into expedited removal, or (in most cases where the individual is caught within the United States) may be placed into regular removal proceedings before an immigration judge.
After a person is detained by ICE, ICE may choose to release that person. This can take a number of forms. If ICE releases a person after they have gone through the credible fear process, the type of release is (or should be argued to be) parole under Immigration and Nationality Act (INA) section 212(d)(5). ICE may release other individuals with parole as well, although this is currently uncommon. If an individual is in regular proceedings and ICE releases them, they are usually released under ICE’s authority under Section 236 of the INA. If ICE releases a person in its custody, it may release them on their own recognizance (free) or with a bond (payable in full before the person can be released). See here for locations where bond can be paid. Only U.S. citizens and permanent residents should post bond for detained individuals.
It is almost always best to request release from ICE before seeking bond before an immigration judge. Usually, immigration judge (IJ) bond is higher than ICE bonds. Cubans in particular should try all avenues for release before ICE before seeking IJ bond, as it may be possible to argue that they can qualify for Cuban adjustment if ICE releases them, but not if they are released by an immigration judge. Immigration judges cannot grant parole, which is essential for Cubans and immediate relatives of qualifying petitioners to seek adjustment of status.
If ICE does not agree to release a detained person, it might be possible to request bond before an immigration judge. Keep in mind that the following individuals cannot, at this time, apply for bond before an immigration judge, and are beholden to ICE discretion for possible release:
- People who have entered the United States illegally and who go through the credible fear process, whether they pass or not. People in this category have at different times been able to seek immigration judge bond, but as of August 2022, they are no longer able to do so. This issue is under litigation.
- People who are classified as ‘arriving aliens’, that is, people who have presented at a port of entry and who are then detained, even if they pass a credible fear interview.
- People who have been removed from the United States before and who are detained and pass a reasonable fear interview. These individuals will be in what is known as ‘withholding only’ proceedings, and only ICE can release them.
Removal Proceedings
If you are in removal proceedings, it is essential to seek and retain legal counsel at the earliest opportunity. Do not wait until your individual hearing to find an attorney. Below is some generalized information about removal proceedings and defenses to assist you in understanding the process.
The first hearing in a removal proceeding is the Master Calendar Hearing. People who are in removal proceedings may have one or more master calendar hearings. In some situations, where they hire a lawyer right away, the lawyer may handle the matters normally dealt with in person at this hearing in writing, and in that case this initial hearing may not be held.
At a master calendar hearing, the key people present are the Immigration Judge (IJ), the Respondent (the immigrant the government wants to remove), the respondent’s lawyer, if they have one, the lawyer for the Department of Homeland Security (the agency that is trying to remove the immigrant), and an interpreter, if needed.
The IJ may choose to continue (postpone) the master calendar hearing, especially if the person asks for more time to find a lawyer or for other reasons, or the IJ will try to establish that the person is removable. If the judge finds the person is in fact removable, the IJ will ask about possible defenses, such as asylum or cancellation of removal (more information below). The IJ will then set other deadlines, and may schedule another master calendar hearing or an individual hearing.
It is very important that you have a lawyer examine your case before you agree that you are removable from the United States. It is very difficult to take back anything you admit to during this hearing, so try to have a lawyer help you with this if possible.
If you are in removal proceedings, the only way to avoid getting an order of removal is by presenting a defense. There are many defenses that you and your attorney might raise if you are in removal proceedings, depending on your situation and why you are in removal proceedings, so the below is not a complete list.
The most common defenses, or applications that people file to avoid being removed, are the following:
- Asylum, which is for people who are afraid to return to their countries because they are at risk of persecution (serious harm or death) that the government or someone else will do to them because of their race, religion, political opinion, nationality, or membership in a particular social group. It can be difficult to tell if you qualify for asylum or related forms of relief, such as protection under the Convention against Torture (CAT) or withholding of removal, so be sure to talk to an attorney about your case.
- Cancellation of removal for non-permanent residents, for certain people who have been in the United States for at least ten years and whose removal would cause ‘exceptional and extremely unusual hardship’ to a U.S. citizen or legal permanent resident child, spouse, or parent
- Cancellation of removal for permanent residents, for certain people who are at risk of losing their resident status and who have been a resident for five years after living in the U.S. continuously for seven years
- Special rule cancellation of removal under NACARA or the Violence Against Women Act (VAWA). VAWA cancellation may be available to people who are the victims of abuse by a U.S. citizen or permanent resident spouse, child, or parent, who meet certain residency, good moral character, and hardship qualifications.
- Voluntary departure, which allows qualifying respondents to leave the country voluntarily to avoid a removal order.
Your Individual or Merits Hearing is your “trial.” This is the hearing where the immigration judge (IJ) will make a decision about any application you have filed to avoid removal. You will need to be prepared to present your testimony and any witnesses, and make legal arguments about why you should be allowed to stay in the country. A lawyer can help you prepare for this hearing, and should file evidence, legal briefing (written arguments), lists of witnesses, and other required documents by the deadlines the IJ has set for these filings.
If the immigration judge (IJ) denies your application, and you disagree, you must file a Notice of Appeal to the Board of Immigration Appeals (BIA) within thirty days, and it must be received (not just sent) by this deadline. The BIA will then send out an order with deadlines for briefs (written legal arguments) to be sent to the BIA. Your lawyer should file this brief by the deadline set by the BIA. The BIA will then make a decision about your case.
You cannot submit new evidence to the BIA, so it is important that all of your evidence be submitted before your hearing with the immigration judge. The BIA will make its decision based on what happened in that hearing, what you submitted before that hearing, and the arguments your lawyer presents.
If you win your appeal, this might be the end of your case, or you might have another hearing with the IJ. If you lose, you may choose to appeal your case to a federal appeals court, or circuit court. You must file that appeal, called a Petition for Review (PFR) within thirty days of when the BIA denies your appeal.
Removal Proceedings
Naturalization
Naturalization
If you’re a legal permanent resident, you may be wondering when you can become a citizen. See here for an overview of naturalization for a variety of scenarios, or browse below.
If you have been married to a U.S. citizen for three years, are 18 years of age or older, have lived at your current address for at least three months, have maintained “good moral character” for the past three years, including filing tax returns each year, have not committed, at any time, certain disqualifying crimes, and meet physical residency requirements, you may be eligible to file for citizenship. Click here to learn more.
If you are at least 18 years old, have been a permanent resident for at least five years, have been physically present in the United States for at least 30 months during the last five years with continuous residence during at least the five years before you file your citizenship application, you may be eligible to apply for naturalization. As with the other naturalization tracks, you’ll also have to demonstrate good moral character for the required time period, and pass an English and Civics test. You can review the full list of eligibility requirements here.
For Attorneys
I provide case support to other attorneys on a contract basis. Contact me for more information!
I can provide high-quality Spanish interpretation and translation for your immigration cases. I am a federally certified court interpreter with years of experience as an interpreter in immigration court as well as federal and state courts. In addition to translation, I can also review Spanish-language documents and social media your clients might provide to you to determine if they are relevant to your case and therefore should be translated.
Additionally, I regularly perform Spanish-language research to find articles and reports that might support your client’s claim. Your client may not be able to provide you with publicly available evidence in their own language, either because they do not know what to look for, do not know what exists, or simply lack the technological skills to look for it. In many cases, I have uncovered critical supporting evidence by searching social media and other online sources in Spanish.
Finally, I can review DAR transcripts of immigration hearings to uncover inaccuracies in interpretation that could support an appeal, and provide expert testimony regarding interpretation issues.
Need help writing a brief, researching a discrete issue, drafting a declaration, or looking for someone to stand in for you at a master calendar hearing in Arizona or remotely? Feel free to reach out for fees and availability!
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