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Myths Vs. Facts Explained by a Virginia Immigration Lawyer

This section is devoted to exploring and dispelling myths common in immigration law.

Myth: I arrived in the U.S. without a legal visa but married a U.S. Citizen. Therefore, I can apply for permanent residency.

Fact: Marrying a U.S. citizen does not automatically entitle an alien to receive permanent residency via a relative. Marriage is only one of the factors to consider in determining if an alien is eligible for the U.S. citizen spouse to act as a sponsor. Generally, avenues for permanent residency are greatly limited if an alien arrives in the U.S. without the proper legal documentation.

Myth: I entered with a legal visa and married a U.S. citizen. Therefore, I can apply for U.S. citizenship.

Fact: A U.S. citizen can sponsor a spouse if the spouse legally entered the U.S, often with the help of a DC immigration lawyer. However, the alien cannot apply for citizenship at that time. The first step is to apply for permanent residency. Once an alien receives permanent residency, then he/she can apply for Virginia naturalization to become a U.S. citizen after a certain period of time. Generally, an alien who receives permanent residency based on marriage to a U.S. citizen becomes eligible for naturalization after three years. Other residency and continuous presence requirements also must be met in order to qualify for naturalization.

Myth: I currently have Temporary Protected Status (TPS) and I am married to a U.S. Citizen or Lawful Permanent Resident (LPR). Therefore, my spouse can sponsor me for permanent residency.

Fact: TPS is only a temporary measure to allow citizens of certain countries to remain and work in the U.S. due to the occurrence of an event in their home country. When the designation of TPS for a specific country ends, TPS will expire for all those individuals from that particular country. Upon the expiration of TPS, those aliens will return to the status they previously held before TPS. If an alien was ineligible for permanent residency prior to receiving TPS, then that alien is most likely still ineligible for permanent residency while having TPS. Call your DC immigration lawyer to find out if you’re ineligable. TPS is not an avenue to receive permanent residency.

Myth: I do not have legal immigration status in the U.S. but my child was born in the U.S. Therefore, my child can sponsor me for permanent residency.

Fact: In order for a U.S. citizen to sponsor a parent, the U.S. citizen must be at least twenty-one years of age. Even if the petitioner is at least twenty-one years of age, the parent needs to prove eligibility for permanent residency on other grounds as well.

Myth: I received Advance Parole prior to leaving the U.S. for a trip abroad, so I will automatically be permitted to re-enter the U.S. after my trip.

Fact: While obtaining advance parole will benefit a great majority of people, it does not entitle everyone to re-entry into the U.S. after a trip abroad. Aliens generally request advance parole prior to leaving the U.S. if they have an application pending with the USCIS and do not want it abandoned and denied. However, even if the USCIS grants an alien advance parole, that alien may not necessarily be entitled to re-entry after a trip abroad. If an alien has accrued between six months and one year of unlawful presence and subsequently leaves the U.S., that alien may not re-enter for a period of three years, even with a grant of advance parole. Similarly, if an alien has accrued one year or more of unlawful presence and subsequently leaves the U.S., that alien may not re-enter for a period of ten years, even with a grant of advance parole. Advance parole does not act as a waiver to the three and ten year bars for re-entry.

Myth: I am a U.S. Citizen and can sponsor my parents for permanent residency, who can then bring my sibling under twenty-one years of age as a dependant.

Fact: While many applications do permit aliens to declare their spouses and children as dependants, an application for permanent residency based on immediate relative status does not allow for dependants. A U.S. citizen, at least twenty-one years of age, can sponsor both his parents and siblings. However, the applications are two separate petitions. The parents of U.S. citizens are considered immediate relatives and do not need to wait for a visa number to become available. Siblings, on the other hand, must wait for a visa number to become available, which can be as long as ten years.

Myth: I can enter the U.S. on a non-immigrant visa and immediately apply for permanent residency.

Fact: Certain non-immigrant visas allow aliens to have dual intent. The USCIS has recognized dual intent, which in essence allows an alien to intend to return to his home country while simultaneously intend to apply for permanent residency. To date, the only non-immigrant visa categories to recognize dual intent are the H-1B and L-1 visas. Therefore, an alien who possesses either a valid H-1B or L-1 visa may also apply for permanent residency without affecting his non-immigrant visa.

On the other hand, aliens who enter the U.S. on other non-immigrant visas, including a B-2 tourist or F-1 student visa, should not immediately apply for permanent residency upon entry into the U.S, according to most DC immigration lawyers. Most non-immigrant visas do not recognize dual intent. The alien must instead demonstrate an intent to return to his home country upon the expiration of the visa. By entering the U.S. on a B-2 or F-1 visa, for example, and apply for permanent residency within the first sixty days, a presumption of fraud arises. An issue of fraud may arise as the alien, in anticipation of obtaining a non-immigrant visa, stated to the U.S. Consular officials that he intended to leave the U.S. after expiration of his visa. Applying for permanent residency within the first sixty days of entry into the U.S. negates the alien’s statements of intention to return. As a result, an issue of fraud may arise.

Myth: I can choose the local immigration office in which to submit my adjustment of status application.

Fact: An alien must submit his adjustment of status application to the local immigration office having jurisdiction over the alien’s place of residence. Although some local immigration offices may adjudicate applications faster than others, an alien cannot choose which office to submit his application. Upon moving to a residence in which a different immigration office has jurisdiction, the alien’s application will be transferred to the new local office. Even if the new office has longer processing times than the prior immigration office, the alien cannot keep his application at that office if he no longer resides within the proper jurisdiction.

Myth: I entered the U.S. without a legal visa or I entered the U.S. with a visa but overstayed, and I found an employer willing to sponsor me for permanent residency. Therefore, I am eligible for permanent residency based on employment.

Fact: An alien is not automatically eligible for permanent residency solely due to the fact that a U.S. employer is willing to sponsor that individual. The alien must be eligible to adjust his status to employment-based permanent residency if he is currently in the U.S. Failure to maintain legal status will prevent most aliens from being eligible to adjust their status to permanent residency. Certain laws, such as 245(i), permitted aliens present in the U.S. without legal status to apply for permanent residency if they had either a family member or employer willing to act as the sponsor. However, 245(i) expired on April 30, 2001, and to date, no other law currently exists permitting aliens without status to apply for permanent residency through an employer.

Myth: I have been convicted of a crime while in the U.S. Therefore, I will be ordered removed from the U.S.

Fact: Convictions of crimes does not always render an alien removable from the U.S. Many factors play a part in determining whether an alien will be at risk for being removed from the U.S. upon conviction of a crime. Factors to be taken into account are the crime itself, the actual penalty if convicted, the potential penalty for the crime, when the crime was committed, and the criminal history of the alien. Additionally, certain waivers and defenses may still be available to aliens convicted of crimes to prevent being removed from the U.S.  Because of the high stakes involved in such a case, it is important to consult with an experienced DC immigration lawyer who can present the details and merits of your case in the best light possible.

Myth: I want to join the US military service, so I am eligible for permanent residency.

Fact:  A person’s desire to join the U.S. military service does not make them eligible for permanent residency in the United States.  In actuality a person must have permanent residency.

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