A Legal Guide for Non-Citizens:
Answering Some Frequently Asked Questions
Jerome N. Frank Legal Services Organization
at Yale Law School
A Legal Guide for Non-Citizens: Answering Some
Frequently Asked Questions -- Nick Lewin, YLS Class of 2004
This guide was written to answer common questions about immigration law and other
issues of concern to our non-citizen clients. The questions are grouped into five
Lawful Permanent Residency and Visas
o Undocumented Status and Out-Of-Status
o Applying for Your Green Card (Lawful Permanent Resident or LPR) 6
o Becoming a U.S. Citizen
o “Good Moral Character”
Talking to Police and Immigration Agents: Your Rights and Responsibilities 14
18 The information in this guide is current as of August 2006, but may have changed.
Please understand that this guide is for general informational and educational purposes only. It is not legal advice, because legal advice depends upon the specific
circumstances of each situation. The information in this guide cannot replace the
advice of an experienced lawyer. For more information about finding a lawyer, please
contact Yale Law School’s Jerome N. Frank Legal Services Organization through Junta
for Progressive Action at (203) 787-0191 or Connecticut Statewide Legal Services at
Lawful Permanent Residency and Visas 1. Undocumented Status and Out-of-Status I ENTERED THE UNITED STATES ILLEGALLY, BUT NOW I WOULD LIKE TO GET MY “GREEN CARD” AND BECOME A LAWFUL PERMANENT RESIDENT (LPR). WHAT CAN I DO?
Unfortunately, changes in the law made in 1996 make it almost impossible
a permanent resident or citizen if you entered the United States illegally, unless you first
return to your country of citizenship and begin the application process there. Entering
the country “illegally” means that you entered without inspection at a port of entry.
However, if you have been unlawfully present in this country for 180 days, and you
leave the country to pursue legal status, you wil not be allowed to return for three
years, and if you have been unlawfully present in this country for one year and leave,
you will not be allowed to return for ten years. Because of these “3 year/10 year” bars,
if you are currently out-of-status, you should not leave the country to pursue legal status
without first consulting with an experienced immigration attorney.
First, it is important to understand that there is a difference between entering the country
illegally and entering the country legally
(with a valid U.S. visa) but being “out-of-status”
because your visa has expired. If you entered the country legally, but are currently out-
of-status, you should speak with a lawyer. Depending on how long you have been out-
of-status, you may have some options. The information in this section only applies to
people who entered the country illegally, and are interested in applying for a green
card without first returning to their home country. If you entered the United States illegally
there are a few things you should know:
1. Marrying a U.S. citizen or permanent resident does not guarantee
you will get a
2. Having an employer who is wil ing to sponsor you does not guarantee
that you get a
3. The sponsorship of a family member – even a brother, sister, or parent – who is a
permanent resident or citizen, does not guarantee
that you get a green card.
4. Under the current law, it generally does not matter
how long you have been in the
country, if you entered illegally. There is a very limited exception, called
“Cancellation (b)” for immigrants who have been in the United States for more than
ten years and for whom deportation would create “exceptional and extremely
unusual hardship” to a citizen or LPR spouse. Cancellation (b) is discussed in more
5. Unless you fit under one of the exceptions which are discussed below, you need to
return to your country of citizenship and try to re-enter the United States legally.
However, even if you do return to your home country to apply for a green card,
- 2 -
there are still rules that might prevent you from becoming a lawful permanent
• If the U.S. government knows that you were in the United States illegally for more than 180 days
, and you leave and then want to re-enter, you may be barred
from re-entering for 3 years
• If the U.S. government knows that you were in the United States illegally for 365 days or more
, and you leave and then want to re-enter, you may be barred for
re-entering for 10 years
• It is your burden
to show that you were not il egally in the United States. In other
words, if the U.S. government suspects that you were in the United States illegally,
you will have to convince them that they are wrong. This can be very difficult to
• However, applicants who have been in the United States illegally can apply for a
waiver of these bars. The waiver is only available if you can show that, even
though you were here illegally, barring you from reentering the country will cause extreme hardship
to your U.S. citizen spouse or parent, or to your lawful
permanent resident (green card holder) spouse or parent. *** If you have lived in the United States illegally for more than 365 days, leave the
United States, and then return illegally, YOU CAN BE PERMANENTLY BARRED FROM IMMIGRATING. If you leave the United States following an order of deportation and
return illegally you can be PERMANTLY BARRED FROM IMMIGRATING. If you reenter the
United States illegally after previously being deported the U.S Immigration and Customs
Enforcement (ICE, formerly INS) CAN CRIMINALLY PROSECUTE YOU AND/OR DEPORT YOU
FROM THE UNITED STATES WITHOUT GIVING YOU THE OPPORTUNITY TO HAVE A HEARING
BEFORE A JUDGE. *** ARE THERE ANY EXCEPTIONS TO THE RULE THAT A PERSON WHO ENTERS THE UNITED STATES ILLEGALLY CANNOT RECEIVE A GREEN CARD OR BECOME A CITIZEN? WHAT ARE THEY?
There are few ways in which people who entered the country illegally can become a
resident without returning to their country of citizenship and applying from there. You
should know that these exceptions are very limited, and most people who enter the
United States illegally do not qualify. However, if you believe you are one of the few
people who do qualify for one of these exceptions, you should talk to an experienced
immigration lawyer because these kinds of applications are very complicated.
The four primary ways in which someone who entered the United States illegally can
become a resident are:
- 3 -
Applying for Asylum:
• In order to be eligible for asylum, you must prove that you have a “well-founded fear of persecution”
by the government in your home country, or by
a group that the government in your home country is not able to control,
such as a rebel or terrorist organization. But just being scared is not enough.
Your fear must be considered “reasonable” by immigration authorities. If you
think you might be eligible for asylum in the United States, you should speak
with a lawyer who has experience with asylum petitions.
• General y, you can only apply for asylum within one (1) year of entering the
United States illegally or legally. There are very limited exceptions to the one
year rule, such as where certain conditions change in your former-home
country or if extraordinary personal circumstances, such as serious illness,
prevented you from applying. It is your burden to show that you have been
in the United States less than a year or to show that there were special
circumstances that kept you from applying before the year was up. If
you’ve been in the United States for more than one year, but think you might
be eligible, you should speak to an experienced immigration attorney.
Victims of Domestic Violence or a Serious Crime: If you are the victim of domestic
violence, you might be eligible for either a self-petition or for a U-Visa. Both of
allow you to get a green card. Please see below for more details on
domestic violence, self-petitions, and U-Visas.
• If your husband or wife who is abusing you is a U.S. citizen or a lawful
permanent resident you can self-petition for a green card. Please see below
for more details on how to self-petition.
• If your husband or wife is not a U.S. citizen or lawful permanent resident (but is
here illegally or on a temporary visa), or if you are not legally married to the
person who is abusing you, you might be eligible for a U-Visa. If you are the
victim of another serious crime you might also be eligible for a U-Visa. Please
see below for more details on the U-Visa.
Someone filed a family petition (I-130) or an employment petition (I-140) before
May 1, 2001 under which you could immigrate: The law is actually very complex,
therefore you should consult a lawyer if you think you may be eligible.
Immigrant has been in the U.S. continuously for more than 10 years and removal
would cause “exceptional and extremely unusual” hardship for a U.S. citizen/LPR
spouse or children. This is called “Cancellation (b)” and is a very limited
- 4 -
exception to the rule that if you entered illegally your cannot become
documented. There are three requirements for Cancellation (b):
o You must have been continuously present in the United States for the
ten (10) years immediately preceding the date of your application.
o You must have “good moral character,” a term which is explained
elsewhere in this guide, and must not have been convicted of certain
o You must be able to establish that removal would result in exceptional
and extremely unusual hardship to your U.S. citizen/LPR husband/wife,
parent or child.
There are other very narrow programs for certain people (such as unaccompanied
minors and victims of trafficking) but an extraordinarily small number of people qualify
for these programs. If you think you may qualify, you should speak with an experienced
immigration lawyer. *** If you entered the country illegally, be very careful of any lawyer or other person who says that they can help fix your immigration status if you pay them. Unless you fit
into one of the narrow exceptions above, no lawyer can help you get a green card or
become a citizen if you entered the country illegally. These people may be trying to
take your money even though there is nothing they can do to help you!!! *** MY VISA HAS EXPIRED OR IS OUT OF STATUS. WHAT SHOULD I DO?
If the arrival/departure card (also called an I-94 card) you received when you last
entered the United States, or the I-94 you received when you last received an extension
or change of status, has expired, it is very important that you take appropriate steps.
If the I-94 card has been expired for less than 120 days you can sometimes
get an extension without a penalty.
If the I-94 card has been expired for between 120 and 180 days, you may
have to leave the United States and then re-enter with the appropriate visa
and should have no difficulty. However, you cannot get an extension from
within the United States and you will have to go to the U.S. embassy or
consulate in your home country.
If the I-94 card has been expired for more than 180 days and you leave the
United States and then seek to re-enter, you may be barred from re-entering
for 3 years.
- 5 -
In addition, if you are out-of-status for 365 days or more, and you leave and
then seek to re-enter, you may be barred from re-entering for 10 years.
These very strict laws have few exceptions. Therefore, it is extremely important that you
monitor the expiration date on your current I-94 card. 2. Applying for Your Green Card (Lawful Permanent Resident or LPR) I AM APPLYING FOR MY GREEN CARD AND I’VE HEARD THAT I NEED A SPONSOR. WHAT DOES THAT MEAN?
A sponsor is a person who helps an immigrant become a lawful permanent resident
(green card holder) by signing an “affidavit of support” (Form I-864). An affidavit of
support shows that the immigrant applying for a green card is not likely to become
dependent on government benefits, like welfare, because the sponsor is financially
able to support the applicant. There are income requirements
for sponsors who sign
Sponsors who sign affidavits must show that they earn enough to support a
household that includes the immigrant, family members joining the immigrant,
and the sponsor’s family. In order to prove that the sponsor can afford to
support the person they’re sponsoring, they must show that their household
income is at least 125% of the federal poverty level (currently $27,537 for a
household of five people).
Sponsors who can’t meet these requirements may find a joint sponsor who also
must sign an affidavit of support promising to support the immigrant. The total of
the two sponsors must be at least 125% of the federal poverty level.
If the sponsor’s own income doesn’t meet the required level, he or she can also
count the income and assets of members of their household who are related by
birth, marriage, or adoption. If the immigrant to be sponsored is already living in
the United States, his or her own income can also count towards the total.
Sponsors who cannot meet these requirements can also use their assets to help
meet the income requirements. Assets are things like property, a house, cars,
money in savings accounts, and stocks. The total of the sponsor’s assets must be
at least five (5) times the difference between your household income and the
required income level based on the federal poverty guidelines. Here is an
o If you wish to be a sponsor and the guidelines say that your household
income has to be at least $25,537 to sponsor a family member, and
you only earn $24,537, you would be $1,000 short.
o But the guidelines allow you to make up the difference between your
income (in this example, $24,537) and how much you have to earn to
be a sponsor (in this example, $25,537), with your assets. Your assets
- 6 -
have to be worth at least 5 times the difference between your income
and the amount required by the guidelines.
o So, in this example, if you own a car worth $5,000, the value of that car
would be equal to 5 times the difference between your actual income
and the required level ($1,000), so you would meet the requirements
and could sponsor your family member.
Sponsors who sign affidavits (I-864 forms) are not responsible for government
benefits (like welfare) used after the immigrant: (1) becomes a U.S. citizen; (2)
earns credit for about 10 years of work history in the United States, according to
the Social Security Administration, either through his/her own work or the work of
a spouse or parent; (3) leaves the United States permanently; or (4) dies. I WOULD LIKE TO SUBMIT A PETITION FOR ANOTHER MEMBER OF MY FAMILY TO GET A GREEN CARD. DO I HAVE TO BE A CITIZEN TO PETITION FOR MY FAMILY?
No. But whether you can bring a family member to the United States depends on two
factors: (1) your own citizenship or residency status, and (2) how that family member is
related to you. Someone who wants to bring a family member to the United States is
called a petitioner, because they are submitting a petition for their relative to become
a permanent resident.
A petitioner can bring family members to the United States only if the
petitioner is already a U.S. citizen or permanent resident (green card holder).
A permanent resident can petition for: (1) unmarried children (of any age), or
(2) a spouse (husband or wife).
A U.S. citizen can petition for: (1) parents, (2) spouse, (3) unmarried children
under 21, and (3) siblings (brothers and sisters). In addition, although it is more
difficult and can take a lot more time, U.S. citizens also can petition for
children who are married or older than 21.
Notice who is not on this list: grandparents, cousins, aunts, uncles, parents-in-
law and other extended family members. Neither citizens nor green card
holders can normally submit petitions for these family members.
You should know, however, that the rules are different if you are applying for asylum,
VAWA petitions or for U-Visas. You can find more information on those procedures
elsewhere in this guide.
- 7 -
HOW LONG WILL MY FAMILY HAVE TO WAIT AFTER I PETITION FOR THEM TO BECOME PERMANENT RESIDENTS?
Unfortunately, no one can say exactly how long each applicant will wait, but it can be
a very long time. Even for an immediate family member, such as the spouse of a U.S.
citizen, the whole process is likely to take a minimum of one year. For other groups, it
can take many, many years. To give you an idea, the average wait from most
countries is as fol ows:
• 2 Years: for family members such as spouses of U.S. citizens
• 5 Years: for spouses and unmarried children of permanent residents under 21
• 5 Years: for married children of U.S. citizens
• 11 Years: for brothers and sisters of U.S. citizens
Remember that these are just estimates, and the actual time could be longer or shorter.
Also, the wait will probably be longer if the immigrant is from a country from which there
are many applications, such as Mexico or the Philippines. IS THERE ANYTHING I CAN DO TO MAKE THE PROCESS OF PETITIONING FOR MY FAMILY GO MORE QUICKLY?
Yes. There are some steps you can take to speed up your family member’s progress
toward a green card, or to make sure that the process goes smoothly.
Apply for U.S. Citizenship: If you are a lawful permanent resident, but not yet a
citizen, you can help your family member by applying for citizenship as soon as you
are eligible. As soon as you become a citizen, you can move your family members
to a speedier immigration category.
Explain to Your Unmarried Children the Effects of Marriage: Married children have
it tough when it comes to immigrating. If you have children who have not yet
married, and they want to immigrate through you, make sure they know that getting
married to a non-U.S. citizen or permanent resident will probably add years to their
wait time. Of course, the decision to marry is a highly personal one, but if their
priority is to immigrate to the United States, they might consider waiting to marry until
after they have received their green card. It won’t matter that they were unmarried
when you started the immigration process for them; they have to be unmarried
when they pick up their immigrant visa or green card, or they won’t qualify for it.
Have Different U.S. Citizen Family Members Sponsor the Same Immigrant: You’ve
heard the phrase “don’t put all your eggs in one basket.” There is no harm in having
more than one family member file visa petitions for the waiting immigrant. For
instance, both parents could file for a child, to insure against the death of one of
them. Or a person whose parent is a U.S. citizen and is married to a permanent
resident could have both their spouse and their parent file a visa petition for them.
- 8 -
That way they would be on two waiting lists and can benefit from whichever moves
most quickly. WHAT HAPPENS IF I MISS MY IMMIGRATION HEARING?
It is very important
that you don’t miss your immigration hearing, because it is very, very
difficult to fix. If you do miss the hearing, the judge will probably order you deported,
even though you weren’t there. You will need to speak with a lawyer about making a
motion to open up your case. In order to open up the case you wil need to prove a
very good reason for missing the hearing.
Weather delays, traffic problems, and minor health problems are examples of
reasons that will probably not be enough to get the judge to open your case.
A very severe health problem is an example of a reason that might make the
judge open up the case.
A person who is ordered deported at a hearing is barred from re-entering the
United States for at least ten years. I HAVE HEARD THAT IT IS POSSIBLE TO HAVE MY GREEN CARD TAKEN AWAY AFTER I GET IT. IS THAT TRUE? WHAT CAN I DO TO MAKE SURE THAT DOESN’T HAPPEN TO ME?
Once you receive a green card, there are only two conditions required to keep it for
life. First, you must not become “removable” or “inadmissible.” The most common way
of doing this is to be convicted of a crime. Second, you can’t abandon the United
States as your permanent residence. As long as you are not planning to make your
home somewhere else, then legally you are still a permanent resident of the United
As a general rule, if you have a green card and leave the United States for more
than one year, you may have a difficult time reentering the country. That is because
the U.S. government believes that an absence of longer than one year indicates
that you may have intended to abandon your U.S. residence. To avoid any trouble,
if you go abroad, you should return to the United States within six months.
Many people think that to keep your green card all you need to do is enter the
United States at least once-a-year. Actually, the truth is that if you ever leave with
the intention of making another country your permanent home, you give up your
U.S. residency when you leave.
On the other hand, remaining outside the United States for more than one year
does not mean you have automatically given up your green card. If your absence
was intended from the start to be only temporary, you may stil keep your
permanent resident status. However, you may no longer use your green card as a
- 9 -