"WE CLAIM NO RESPONSIBILITY FOR THE ACCURACY OF THE FAQ INFORMATION. APPLICATION OF LAW CAN VARY DRASTICALLY ACCORDING TO THE FACTS OF A PARTICULAR CASE. THE FAQ IS NOT MEANT TO BE SPECIFIC LEGAL ADVICE. IT IS ONLY A STARTING POINT."
Immigration FAQ
What is dual citizenship? Why is dual citizenship important? Dual citizenship means being considered a citizen under the laws of two (or more) countries at the same time. Dual citizenship is also referred to as multiple citizenship. Citizens of countries other than the United States who want to apply for US citizenship may be in danger of losing citizenship in their native country—depending on the law of that native country. Basically, if an immigrant wants to naturalize to become a US citizen, the immigrant must be willing to give up citizenship in the native country. ^
How can I become a United States citizen? A person can become a U.S. citizen: by birth, or through naturalization. ^
How do I become a naturalized citizen? If you are not a U.S. citizen by birth or did not acquire U.S. citizenship automatically after birth, you may still be eligible to become a citizen through the naturalization process. ^
When is a legal permanent resident eligible for naturalization? For a U.S. immigrant to naturalize, or actually become an American Citizen, several criteria must first be met. the person must have been afforded lawful permanent resident status, and have continually maintained residence here for at least five years prior to applying for citizenship. This residency requirement for spouses of U.S. Citizens and VAWA self-petitioners is only three years. During the term of residency, absences from the United States must not exceed more than six months at a time, and physical presence must total at least 2.5 years. Again, the term is shortened for spouses of US Citizens for whom the period of physical presence must total 1.5 years. The applicant for citizenship must also be physically present for at least three months prior to filing the application. A criminal record may not permanently restrict an individual from becoming a citizen of the United States. ^
What is the process to apply for naturalization? Once you become eligible to file an application for Naturalization, the process of becoming a citizen of the United States is extensive. In order to complete an application for naturalization, one must complete Form N-400 (Application for Naturalization), pay filing fees, provide two color photographs, copies of relevant immigration documents and other supporting documentation. After you file your application for naturalization, the CIS issues a notice to be fingerprinted and thereafter the Service schedules a Naturalization Interview. At the interview, a Service officer requires that the applicant pass a written and oral English examination and a civics exam. Once the Service approves an application for naturalization, the applicant is scheduled for an oath ceremony. After taking an oath of allegiance to the United States, the applicant is given a naturalization certificate. ^
What can I do if USCIS denies my application for naturalization? There is an administrative review process for those who are denied naturalization. If you feel that you have been wrongly denied naturalization, you may request a hearing with an immigration officer. The form for filing an appeal is the "Request for Hearing on a Decision in Naturalization Proceedings under Section 336 of the Act" (Form N-336). ^
Can I reapply for naturalization if USCIS denies my application? In many cases, you may reapply. If you reapply, you will need to complete and resubmit a new N-400 and pay the fee again. You will also need to have your fingerprints and photographs taken again. If your application is denied, the denial letter should indicate the date you may reapply for citizenship. ^
What do I do if I have lost my Certificate of Naturalization? What do I use as proof of citizenship if I do not have my certificate? You may get a new Certificate of Naturalization by submitting an "Application for Replacement Naturalization/Citizenship Document" (Form N-565). According to the USCIS, it may take up to one year for you to receive a new certificate. If you have one, you may use your passport as evidence of citizenship while you wait for a replacement certificate. ^
What are removal proceedings? Removal proceedings are used by the Department of Homeland Security to try to remove (deport) noncitizens that the DHS believes is not entitled to stay in the US, or to keep out noncitizen people that the DHS believes do not have a right to enter the US. Removal proceedings take place in Immigration Courts located in many states in the US. Removal proceedings used to be called "deportation proceedings" or "exclusion proceedings." ^
What is an illegal alien? An illegal alien is one who has entered the United States without being lawfully admitted by dhs, or entered legally but violated the terms of admission. ^
What is lawful permanent residency (green card)? A lawful permanent resident is a foreign national who has been granted the privilege of permanently living and working in the United States. ^
How do I obtain a green card?
Diversity. The Diversity Immigrant Visa Program provides foreign nationals a way to immigrate to the United States that does not require the sponsorship of a family member or employer. The program is frequently referred to as the “Green Card Lottery” or “State Department Lottery”. The United States government permits application for 50,000 Green Cards (permanent resident visas) through the Diversity Immigrant Visa Program each year. Applicants are selected in a random computer-generated drawing. The application deadline is October 1st, 2003. To be eligible to participate in the lottery, an alien must not only be a native of a designated country, but also have at least a high school education or its equivalent or have worked at least two years in an occupation that requires at least two years of training or experience.
Employment based. A PERM application, formerlyknown as a labor certification, allows an alien to set up permanent employment in the United States. If no American citizens or legal permanent residents can qualify for a position offered by a company, the department may certify a perm application on bhealf of an alien. After the perm is certified, a petition for immigrant worker, form I-140, is filed with the DHS. Current interim regulations permit for concurrent filing of an application for adjustment of status and I-140 petition as long as an immigrant visa number is immediately available.
Marriage based Each year thousands of American citizens marry foreign-born persons and petition for them to obtain permanent residence in the United States. Spouses of U.S. citizens are considered "immediate relatives" under the immigration laws. Therefore, spouses are exempt from all numerical quota limitations. Legal permanent residents may also file petitions for spouses, however, such petitions are subject to a waiting period of several years before a visa is available.
Family based (non-marriage). Family-based US residency may be granted for family members of US citizens and legal permanent residents. Residency is subject to well-defined preference categories that prescribe annual limitations on the number of immigrant visas that are available. An alien child under the age of 21 years may obtain permanent residency through a US citizen parent without numerical limitation. In addition, parents of US citizen sons or daughters (over age 21) may also obtain permanent residency without numerical limitation. The following types of family based petitions are subject to numerical limitation: First preference, unmarried sons and daughters (over age 21) of US citizens, Second preference, unmarried sons and daughters of legal permanent residents, unmarried sons and daughters of US citizens and brothers and sisters of US citizens. ^
How do I replace an expired, lost or stolen alien registration card (“Green Card”) An expired, lost or stolen alien registration card (green card) may be replaced by the US DHS after the card-holder applies for a replacement card via Immigration Form I-90. ^
What is a student visa? The United States welcomes foreign students to American language schools (English as a second language), high school, universities and other institutions of higher learning. An applicant for a student visa must come to the United States to pursue an academic program in an institution recognized by and affiliated with the DHS. The alien must have a valid educational purpose for coming to the United States. The student can stay in the United States for the duration of the approved program. An F-1 (student) visa is issued to bona fide students who desire to study in the United States. The student is permitted to live in the US for the duration of his or her schooling. ^
What is a visitor visa? Temporary nonimmigrant status is allowed in the US through what is called a visitor visa. Basically, a visitor visa is issued to people from other countries who want to come to the United States for a short time for business or pleasure. ^
What is a treaty trader? Treaty traders (E non-immigrants) are those seeking to come to the United States in order to direct and develop the operations of a business in which they have invested substantial financial risk. The business must also conduct or present the potential for sizable trade. The application for a treaty trader must come from a country with which the US has an appropriate trade and navigational treaty. ^
What is Temporary Protected Status? Temporary Protected Status (TPS) is a temporary immigration status granted to eligible nationals of designated countries (or parts thereof). In 1990, Congress established a procedure by which the Attorney General may provide TPS to aliens in the United States who are temporarily unable to return to their homeland because of ongoing armed conflict, environmental disasters, or other extraordinary and temporary conditions. ^
What is asylum? Asylum is a form of protection granted to individuals in the United States who have been persecuted or fear they will be persecuted on account of their race, religion, nationality, membership in a particular social group, or political opinion. Individuals who meet this definition of a refugee and who are already in the United States or who are seeking entry into the United States at a port of entry may qualify for a grant of asylum and be permitted to remain in the United States as long as they are not barred from either applying for or being granted asylum. Individuals who are granted asylum are eligible to apply to adjust their status to that of a lawful permanent resident. Unlike the U.S. Refugee Program, which provides protection to refugees by bringing them to the United States for resettlement, the U.S. Asylum Program provides protection to qualified applicants who are already in the United States or are seeking entry into the United States at a port of entry. Asylum-seekers may apply for asylum in the United States regardless of their countries of origin and regardless of their current immigration status. There are no quotas on the number of individuals who may be granted asylum each year. ^
How do I apply for asylum? To apply for asylum, you will need to complete Form I-589, Application for Asylum and for Withholding of Removal, and follow the instructions carefully. Your personal circumstances will determine where you should file your application. ^
Can I Still Apply for Asylum Even if I Am Illegally in the United States? Yes. You may apply for asylum even if you are in the U.S. illegally. You must file your application for asylum within one year of your last arrival or demonstrate that you are eligible for an exception to that rule based on changed circumstances or extraordinary circumstances, and that you filed for asylum within a reasonable amount of time given those circumstances. ^
Can Anyone Help Me With My Asylum Application and My Asylum Interview? You have a right to provide your own legal representation at an asylum interview and during immigration proceedings before the Immigration Court, at no cost to the United States Government. ^
What Does It Mean to be Referred to Immigration Court? This means that the Asylum Officer was unable to approve your asylum application and you currently do not have valid immigration status. If your case is referred to the Immigration Court, you will receive a charging document (a Notice to Appear) that places you in removal proceedings in Immigration Court. Your asylum application will be referred to the Immigration Court for an Immigration Judge to consider during the removal proceedings. ^
Do I Have to Notify Immigration About My Address Change? All non-U.S. citizens who are required to be registered are also required to keep USCIS informed of their current address. It is also mandatory for any alien who has been designated as a "special registrant" under 8 CFR § 264.1(f) to inform USCIS whenever he or she has a change of address, employment or school. a change of address must be registered by two separate avenues. First, the foreign national must file Form AR-11 with the USCIS online or by mailing to the us cis in Washington DC. Second, if they have any pending applications or petitions, they must notify the USCIS of the address change for all pending applications or petitions. This can be done by calling the USCIS or by using the online system. ^
What is an H-1B? The H-1B is a nonimmigrant classification used by A foreign national who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability. ^
What is a specialty occupation? A specialty occupation is a job that requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. ^
Is there an annual limit on the number of H-1B aliens? Yes. The current law limits the number of foreign nationals who may be issued a visa or otherwise provided H-1B status to 65,000. ^
How long can an alien be in H-1B status? A foreign national can H-1B status for a maximum period of six years at a time. After that time a foreign national must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period, when: 365 days or more have passed since the filing of any application for labor certification or PERM that is required or used by the alien to obtain status as an EB immigrant, or 365 days or more have passed since the filing of an EB immigrant petition. ^
Can an H-1B intend to immigrate permanently to the U.S.? Yes. An H-1B can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as "dual intent" and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to the U.S. ^
How does one become eligible for U nonimmigrant status? There are four statutory eligibility requirements: (1) the applicant must have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity; (2) the applicant has information concerning that criminal activity; (3) the applicant has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the crime, and (4) the criminal activity must have violated the laws of the United States or occurred in the U.S. ^
What qualifies as "criminal activity"? Qualifying criminal activity is defined by statute as that being an activity involving one or more of a long list of activities that violate Federal, State, or local criminal law – from murder, rape, torture, sexual exploitation, and extortion to witness tampering, obstruction of justice, false imprisonment, etc. This is not an exclusive list – in fact, the list of qualifying crimes represents the many types of behavior that can constitute domestic violence, sexual abuse, trafficking, or other crimes which vulnerable immigrants are often targeted. ^
What qualifies as a "certifying agency"? Agencies which must certify that a petitioner for U nonimmigrant status has, is, or will be helpful include federal, state, or local law enforcement agencies, or a prosecutor, judge or other authority that has responsibility for the investigation of the criminal activity. Other agencies such as child protective services, the Equal Employment Opportunity Commission, and the Department of Labor also qualify as certifying agencies since they have criminal investigative jurisdiction within their respective areas of expertise. ^
How long can one maintain the U nonimmigrant classification? U nonimmigrant status cannot exceed four years; however, extensions are permitted upon certification by a certifying agency that the alien's presence in the U.S. is required to assist in the investigation or prosecution of a qualifying criminal activity. ^
Is there a cap on the number of U Nonimmigrant status grants? USCIS may grant no more than 10,000 principal aliens U nonimmigrant status in any given fiscal year (October 1 through September 30). This does not apply to spouses, children or other qualifying family members who are accompanying or following to join the principal alien victim. If the cap is reached in any fiscal year before all petitions are adjudicated, USCIS will create a waiting list that the agency believes will provide a stable mechanism by which victims cooperating with law enforcement agencies can stabilize their immigration status. Further, petitioners assigned to the wating list will be given deferred action – that is, they will be eligible to apply for employment authorization or travel – until their petitions can be adjudicated after the start of the following fiscal year. ^
Can an individual who has held U nonimmigrant status eventually apply for permanent resident status? Yes. The individual must have been physically present in the U.S. for a continuous period of at least three years since the date of admission as a U nonimmigrant, and the agency must determine that the individual's continued presence in the country is justified on humanitarian grounds to ensure continuation of a cohesive family, or is otherwise in the best interest of the public. ^
I am not a United States citizen and have been charged with a crime, will this affect my immigration status? It depends on the crime, the guilty plea, and the final disposition (sentence) of the crime. Some crimes can be resolved in the criminal court and not constitute a conviction for state purposes and still be a conviction for immigration purposes. Because federal immigration law is completely distinct from state criminal law you should always contact an immigration lawyer before you resolve your criminal case. ^
If I’ve been convicted of a felony under federal or state law is my conviction an aggravated felony under federal immigration law? The Immigration and Nationality Act lists several aggravated felony crimes at INA §101 (a) (43). ^
I am not a United States citizen and would like to travel. I have a past conviction on my record, will I be allowed to return to the United States? If you are not a US citizen with a criminal record, and would like to travel outside of the United States, you should consult with an experienced immigration attorney. If you have an aggravated felony conviction you will most likely be detained and placed into removal proceedings. If you have any offense related to controlled substance trafficking (no conviction required) you will most likely be detained and placed into removal proceedings. For other crimes it depends on the charge and the crime, if there is a guilty plea and the final disposition (sentence) of the crime. Because federal immigration law is completely distinct from state criminal law you should always contact an immigration lawyer before you travel. ^
I have been ordered to leave the United States, when can I return? Once a person is removed, they are barred from returning to the United States for a period of time, depending on the basis for removal. If you were ordered removed on inadmissibility grounds (other than a controlled substance offense), you must remain outside the U.S. for 5 years. If you were ordered removed on deportation grounds (other than an aggravated felony), you must remain outside the U.S. for 10 years. If you were excluded or deported under old law, you must remain outside the U.S. for 10 years. If you have two orders of removal, you must remain outside of the U.S. for 20 years. If you were ordered removed for failure to attend removal proceedings, you must remain outside the U.S. for 5 years. If you were ordered removed for an Aggravated Felony or controlled substance offense, you have a permanent bar to return to the US. There are waivers available to allow certain kinds of re-entry despite the above listed bars. However, if you illegally re-enter the United States after having been ordered removed and you are detained, you may be subject to criminal prosecution and prison for as much as twenty years depending on the basis of the original removal order. ^
WHAT DO I DO IF IMMIGRATION (IMMIGRATION AND CUSTOMS ENFORCEMENT “ICE”) COMES TO YOUR HOME OR WORKPLACE? If immigration (“ICE police”) or the police COME to your home, you do not have to open the door. If immigration/police have a warrant, ask the immigration/ police to slip the warrant underneath the door. If you do open the door this may be construed as giving the immigration/police consent to enter your home. If immigration/police comes to your workplace they must have a warrant signed by a judge or have the employer’s permission. If you are working in a public place, immigration/police do not need a warrant. If you are arrested you have the right to remain silent. Don’t lie. Do not speak except to say “I want to speak with my lawyer.”
Never: Provide a false or fraudulently altered driver’s license or Minnesota identification card; Give a fictitious name or date of birth to any police officer; or Sign any documents before speaking with a lawyer. Government officials may try to intimidate you into signing documents. Don’t. You may be signing away your right to a hearing before an immigration judge.
You have the right to see a warrant if the police or immigration officials attempt to enter your home. A warrant is a document signed by a judge giving the immigration/police permission to enter your home.
If you are undocumented: Do not give false documents or statements to immigration/police; If asked for identification tell them, “I want to speak with my lawyer.” and; If you do not speak English present the following card to immigration or the police if you are arrested to exercise your right to remain silent and request an attorney.
To Whom It May Concern:
I AM CHOOSING THE RIGHT TO REMAIN SILENT AND THE RIGHT TO REFUSE TO ANSWER YOUR QUESTIONS. IF I AM DETAINED, I WISH TO CONTACT AN ATTORNEY IMMEDIATELY. I AM ALSO EXERCISING MY RIGHT TO REFUSE TO SIGN ANYTHING UNTIL I CONSULT WITH MY ATTORNEY. ^
How should I prepare in case I am arrested and detained? Always carry a card with the contact information of your immigration attorney. Have a plan to care for your family. Designate some you trust to make decisions for you. You can have a power to attorney agreement which gives another person the authority to make decisions on your behalf (have access to your bank account, etc.). Keep all of you important documents – birth certificates, passports, AND MARRIAGE certificates in a safe place. Carry the above sample card indicating you choose the right to remain silent and that you want to contact your attorney. Contact your family or attorney. You have the right to make a telephone call if you are arrested. If you are a foreign national arrested in the United States you have the right to call your consulate or have the immigration officer inform the consulate of your arrest.
To Whom It May Concern:
I AM CHOOSING THE RIGHT TO REMAIN SILENT AND THE RIGHT TO REFUSE TO ANSWER YOUR QUESTIONS. IF I AM DETAINED, I WISH TO CONTACT AN ATTORNEY IMMEDIATELY. I AM ALSO EXERCISING MY RIGHT TO REFUSE TO SIGN ANYTHING UNTIL I CONSULT WITH MY ATTORNEY. ^
Criminal Defense FAQ
What are my rights when being questioned by police after arrest? After an arrest the police are required to read the Miranda warning. The rights afforded under the Miranda warnings are: The right to remain silent; Anything you say can and will be used against you in a court of law; You have the right to an attorney and to have that attorney present during questioning; and If you cannot afford an attorney one will be appointed for you. Do not waive those rights, no matter what offers the police are making. Do not talk with anyone other than an attorney about your criminal matter. Exercise your right to an attorney once arrested. A person must demand for an attorney in no uncertain terms just say, “I want to speak with an attorney.” ^
What is the common procedure in a criminal case? Most criminal cases start with an arrest or an investigation, which leads to the issuance of a warrant, summons or indictment. After arrest a person may be released with citation (tag charge) containing a summons to appear in court for a first appearance or a person will be booked and held prior to the first appearance. At the first appearance an accused person will be advised of the charges and informed of the right to an attorney. After the first appearance, if consolidation has not occurred, an arraignment will be scheduled. At the arraignment (Rule 8) a judge will ask if the defendant wishes to plead guilty. If the defendant does not want to plead guilty the court will not ask for any other plea. The arraignment will then be continued to the Omnibus Hearing where the defendant will enter a plea. Also, at the Omnibus Hearing any challenges to evidence will be heard in a type of mini trial, where each side may cross examine the others witness. If a plea of not guilty is entered the case is then scheduled for a trial. ^
What is the difference between a petty misdemeanor, misdemeanor, gross misdemeanor and a felony? For a Petty Misdemeanor, the maximum jail time is none and the maximum fine is $300.00. For a Misdemeanor, the maximum jail time is 90 days and the maximum fine is $1000. For a Gross Misdemeanor, the maximum jail time is one year and the maximum fine is $3000.00. A Felony offense carries a minimum penalty of 1 year and a one day and a fine in excess of $3000.00. ^
What can I do if the police take my driver’s license? On the back of the Implied Consent form it instructs you that you have 30 days from the date of the Notice of Revocation to do so. You need an Implied Consent Hearing in order to challenge the revocation. ^
If I don't challenge the revocation, what steps do I need to take to reinstate my Minnesota Driver's License? You will need to pay a $680.00 reinstatement fee, take a written test and you may need to speak to a Driver Evaluator in order to receive a limited license. ^
If you have further specific questions, please call us at: 612-339-0033
