WEEK OF AUGUST 7, 2008– AUGUST 13, 2008
** Contributions to this Column are made by Attorney Caroly Pedersen, Esq. of the American Immigration Law Center
THIS WEEK’S IMMIGRATION QUESTIONS

Question: I came to  the USA as a tourist visa three years ago, and never left the country after my I-94  expired.  I have two children here with me that are both in school.  I am working without papers, but finally have been able to make enough money to support my little family.  But I have friends who have been deported from the country who were in the same situation I am in.  I am really nervous that at anytime I could be detained and deported.  What are the chances I get caught?  How quickly would I be deported if I did get caught?

Answer : Many illegal immigrants here in the U.S. without legal documentation often live in constant fear of being detained and deported. In reality, deportation is not something to worry about unless you find yourself in such a situation. The number of individuals in the country without legal status is in the millions, and the government is only able to deport a very small percentage of that number; therefore, the chance of you being deported is small.

However,  it is one of the sad realities of immigration, that for some who are here in the U. S. without legal status, certain circumstances  arise which put the USCIS on notice that an individual is in the U.S. without legal status and deportation is commenced. Such circumstances usually include having a criminal conviction or filing for an immigration benefit such as for Residency or Asylum and the USCIS denies the case. Under current USCIS policy, many such denials (which are not appealed) result in the USCIS beginning deportation.  That is why it is EXTREMELY important for immigrants who are not in legal status to avoid applying for immigration cases which they are not sure to qualify for. One example is for fake immigration marriages, where the denial rate is so high that most such cases are detected, denied and referred for deportation in a short time.  Another is for cases filed to adjust status to residency (I-485), where the individual does not qualify. Again, the USCIS will issue a denial and often begin deportation. Therefore, in cases where an individual is not certain of qualifying for a certain case, BEFORE filing, it is essential to get a second legal opinion as to whether or not it is safe to proceed.

With that said, the process of being deported is a very long one, often lasting years before one must finally leave the country.  Generally, the process begins when an individual receives a Notice to Appear (NTA) in immigration court.  If you ever receive a Notice to Appear, immediately contact an immigration attorney that specializes in deportation.  He or she will be able represent you in court, and help determine the best course of action to contest your deportation. 

Question: My husband and I got married when my stepson, Jorge was 15 years old. I was a US citizen, so my husband got his Green Card as my spouse. We want to obtain residency for Jorge and are very confused about how to go about it. Which one of us is supposed to file for Jorge, me or my husband? Is it even possible for me to sponsor Jorge since I am not his real mom? There is so much conflicting information, I’d appreciate any information you can provide.

Answer: Under Immigration regulations, U.S. Citizen step-parents can sponsor their step children as long as the step-parent relationship was created by the “marriage” between the parents before the step-child turns age 18. Additionally, as long as a U.S. Citizen files an I-130 for a child before the child turns age 21, even after the child becomes 21, he or she remains categorized as a “child” for immigration purposes. The immigration process for  a “child” of a U.S. Citizen is very quick, (approx 8 mos) since they are in a special immigration category called “Immediate Relatives”. In contrast, when a U.S. Resident files an I-130 for a minor child (under age 21), the child is in a “Preference” immigration category which has a long waiting line of approx five years. That means that the child cannot obtain a Green Card before that time. The final difference between a U.S. Citizen or a U.S. Resident sponsoring a minor child, is that if the child in inside the U.S. with an expired I-94 card and a U.S. Citizen parent is the sponsor, the child is still eligible to obtain a Green Card. Whereas the minor child of a U.S. Resident who is inside the U.S. with an expired I-94 card generally cannot.

Since you married Jorge’s father before he turned age 18, you qualify as his parent for immigration purposes and as long as you file the I-130 petition for him before he turns age 21, he will immigrate as a child. If he is inside the U.S., he can likely adjust his status to residency here.