Frequently Asked Questions (FAQs)

 

 Q: Do I need to hire a lawyer for my immigration case?

A:  Your immigration case may be the most important process you go through in your life.  Because of the increasing complexity of U.S. immigration laws and the level of enforcement under the current administration, it is most often beneficial, and sometimes absolutely necessary, to hire an immigration attorney.  In certain situations, however, a matter may be somewhat routine and straight-forward, and can be handled without the help of an attorney.  These cases are the exception rather than the rule.

A good immigration attorney will be able to advise you on the latest changes in immigration law and help you decide on the best course of action, given the facts in your case.  The lawyer will work with you to prepare the case and will represent you in front of the government agency handling your case.  We at Bakken Law will discuss your case with you individually and confidentially and help you to determine if your case requires a lawyer.

BEWARE:  See note on Notarios below

Q: How does President Obama’s Executive Order from November 2014 help me if I am in the United States and have U.S. citizen children?

A: The Executive Order signed by President Obama on November 20, 2014 does many things, including protecting some undocumented individuals from deportation proceedings and allowing them to apply for temporary work permits.  This new program is called DAPA (“Deferred Action for Parental Accountability”).  To be eligible, you must meet the following requirements: 

-        Have one or more children of any age as of November 20, 2014 who are U.S. citizens or lawful permanent residents, 

-        Continuous residence in the U.S. since before January 1, 2010, 

-        Physical presence in the U.S. on November 20, 2014 and at the time of filing a DAPA application, 

-        No lawful status on November 20, 2014, 

-        Are not an “enforcement priority” (including individuals who are threats to national security, border security, and public safety; convicted felons; those with significant non-felony criminal convictions; those who have entered the U.S. unlawfully after January 1, 2014; those who have significantly abused the visa or visa waiver programs; and those who have been issued a final order of removal on or after January 1, 2014).

-        Satisfy the CIS regarding a positive exercise of discretion for inclusion in the program.

Please note, though, that the CIS has not issued the required application forms or the details of the filing procedures for this program yet.  It is expected that applications for this particular part of the new program will be accepted by CIS in April or May, 2015, so stay tuned in the coming weeks and months for more details.

Q: Do I need to live in Colorado to be your client? 

A: No, we have clients who live all over the country and come from all parts of the world.  

Q:  What happens at the initial consultation?

A:  An initial consultation generally lasts approximately one hour, and is the first meeting between attorney and client.  At the meeting, the attorney will gather all of the information from the client that is necessary to understand the facts of the case, as well as review all related documents.  Next, the attorney will be able to give personalized advice and recommendations based upon how the U.S. immigration laws and regulations apply to your case.  By the end of the consultation, you will know what your options are as related to your immigration case, how much the process will cost, and what the next steps will be. We at Bakken Law offer honest, professional, and personalized advice regarding the risks and benefits of proceeding forward in your immigration case so that you may make an informed decision.

Q: How can I check on the status of my case?

A:  If you have an application receipt number (usually this is sent in the mail by U.S. Citizenship and Immigration Services sometime after they have received your application) and your case is pending at an Immigration Service Center, you can check the status of your application online at Case Status Online or by calling USCIS at 1-800-375-5283 and following the automated instructions.

If your case is pending at an Immigration Court or the Board of Immigration Appeals, you may check the status of your case over the telephone by calling: 1-800-898-7180, with your alien number (starts with an A and you will find it in your immigration documentation), and following the automated instructions. There are options to hear your status in Spanish or English.

Q:  I have received a Notice to Appear (NTA) in immigration court.  Do I need a lawyer?

A:  It is advisable that you find an attorney or qualified representative to represent you in immigration court. You will be appearing before an Immigration Judge, and there will be an attorney representing the immigration service at every hearing you attend. The laws and procedures are very complex, and even some inexperienced attorneys are not equipped to navigate them. Find an attorney with whom you are comfortable and who appears to be experienced and knowledgeable.

Q:  What is an Individual Tax Identification Number (ITIN) and how do I get one?

A:  An Individual Tax Identification Number (ITIN) is a number issued by the Internal Revenue Service (IRS) to record any taxes owed by a person who does not have a valid social security number.  To obtain a tax ID number you must file application form W-7 with the IRS with evidence of identity like a copy of your passport. You will receive the number in the mail in approximately one or two months.

Q:  I need to work legally. Do I qualify for a work permit?

A:  Many individuals with applications pending with the immigration service or immigration court are entitled to a work permit. Many others are not.  Consult an attorney to discuss whether you may apply for work authorization.  Note: Frequently notarios tell immigrants that they are eligible for work authorization when they are not.  It is very important to consult with an experienced immigration attorney to determine your eligibility.

Q:  I want a guarantee that my case will win – is that possible?

A:  No.  No ethical attorney will guarantee the outcome of a case.  In immigration law there is no such thing as a risk-free option. Decisions are made by individuals with a great deal of authority and discretion, including immigration officials, Border Patrol Agents, and Immigration Judges, among others, and thus it impossible to guarantee how a case will turn out.  That being said, an experienced and responsible attorney will explain to you the likelihood of your case winning or losing, and should always do so.

Q:  Can a lawyer make the government process my case faster?

A:  No.  Although the time it takes for the government to process a case is not dependent upon whether a person has a lawyer or not, an experienced immigration attorney will know when your case is taking too long and can investigate the issue and move your case forward.  Furthermore, in certain situations, a case is eligible for “fast track” or “premium processing”.  An experienced immigration attorney knows when this process is available.

Q:  Do I have to notify immigration if I change my address?

A:  Yes.  The immigration regulations require that all persons who are not U.S. citizens (including LPRs) inform USCIS of any change in their address within 10 days of moving by completing Form AR-11, Change of Address.

Q:  I have an attorney, but I am not sure my case is being handled correctly. Am I allowed to ask other attorneys for a second opinion on my case?

A:  Absolutely. You have the right to the attorney of your choice, and you may change attorneys at any time even if you have signed a contract with a particular attorney.  Keep in mind that you should ask about what, if any, impact changing attorneys could have on your case.  Furthermore, you must end representation with one attorney before beginning with another – make sure your intentions are clear when speaking to your current attorney as well as any potential future attorney.

Q:  I have received a notice from the immigration service requesting additional documents. How can I make sure I submit the correct paperwork?

A:  You should always follow government instructions very carefully. Failing to provide the proper documents can result in lengthy delays, further requests, and even the denial of your application. Consult an attorney to ensure that you are filing the paperwork that the government has requested.

Q:  I have an immigration issue, and I am thinking of using a “notary,” “notario,” or “immigration consultant” to assist me.  Is that a good idea?
A:   No.  It is very important when looking for help with your immigration case to watch out for people who pretend to be Immigration attorneys or accredited representatives. They can take your money, involve you in immigration fraud, and get you deported or arrested.

In the United States, notaries or notarios have absolutely no legal training and are not legally authorized to practice law.  Many notaries and immigration consultants may be well-known in your community, and may have even provided services for your friends and family with success. However, our office receives many clients who have sought help from notarios and instead paid large amounts of money to file applications for which they were ineligible or which have been denied due to serious errors made by the notario. In some cases, advice from notarios has led to the denial of a green card, deportation, or a permanent bar from all immigration benefits.  Generally, a lawyer will end up charging you much more to clean up the mess left by the notario, and your remaining options may be limited.

Notarios are not licensed professionals, and therefore are not regulated as lawyers are.  This means that they have nothing to lose for dishonest or incompetent legal advice, unlike lawyers who may lose their professional license for such conduct.  We strongly recommend that you consult with an immigration attorney whom you trust before filing any immigration applications.

Q:  What is Temporary Protected Status?

A:  The Secretary of the Department of Homeland Security has the authority to create and extend temporary protected status to foreign nationals who are unable to return to their home countries for a temporary period of time due to war or other conflict, an environmental disaster, or some other extraordinary circumstances that are temporary in nature.  Currently, residents of the following countries are eligible to receive temporary protected status:

  • El Salvador
  • Honduras
  • Haiti
  • Nicaragua
  • Somalia
  • Sudan
  • South Sudan
  • Syria

Temporary protected status is not automatically awarded to all residents from one of these countries. To be eligible, a foreign national must apply for the status with the U.S. Citizenship and Immigration Services (USCIS), which administers the program from the Department of Homeland Security. Certain preconditions exist, including:

  •  The foreign national must meet continuous and physical presence requirements in the U.S.
  • The foreign national must pass the criminal and security background checks (foreign nationals who have been convicted of any felony or two or more misdemeanors in the U.S are ineligible for status)
  • The foreign national must apply for the status in a timely fashion.

Q:  What happens if I overstay my Departure Date?

A:  When an individual enters the U.S. with a nonimmigrant visa or as part of the Visa Waiver Program, his or her passport is stamped with the date of entry and required date of departure.  The CBP (Customs and Border Protection) no longer issues an I-94 card, though one may be downloaded from the CBP website following entry to the U.S.  The individual must leave the U.S. on or before the passport stamp departure date in order to comply with U.S. immigration laws.

In some instances, the U.S. official will stamp D/S rather than an actual departure date. D/S means the individual is authorized to remain in the U.S. for the duration of status. This usually applies to foreign students, temporary workers and exchange visitors. Depending on the type of nonimmigrant visa, individuals are provided a limited amount of time to depart the country once their duration of status expires. For example, academic students are given 60 days to leave the US once their studies are completed.

The visa expiration date and the passport stamp/I-94 departure date are two different things. A visa allows an individual to travel to the US and seek admission at a port of entry. Visas may only be valid for a certain period of time. If the individual does not use the visa to travel to the U.S. before the expiration date, then the visa is no longer valid and the individual must apply for a new one. The passport entry stamp / I-94 card is given once the individual is permitted to enter the U.S. and states the amount of time the individual is authorized to remain in the country.

If an individual fails to leave the U.S. by the departure date, he or she falls out of status. This means he or she is no longer legally in the U.S. and may be subject to certain penalties, including being forcibly returned to his or her home country (deportation), accessed fines and precluded from future immigration benefits. Additionally, overstaying the departure date automatically invalidates the individual's visa. Those in the Visa Waiver Program who fail to leave by their departure date may never be able to participate in the program again, and also may have difficulty securing a U.S. visa in the future.

In order to avoid falling out of status, it is imperative that individuals leave by their departure date. The U.S. Citizenship and Immigration Services (USCIS) will make limited exceptions for those who fail to leave by their departure date due to unforeseen circumstances out of their control. However, these exceptions are rare. If an individual accidently overstays the departure date, he or she should leave the country as soon as possible to minimize any negative consequences.

For those desiring to stay in the U.S. longer or those eligible to change to a different nonimmigrant or immigrant classification, they should submit the appropriate paperwork to extend their stay or change their status well in advance of their departure date. Both of these applications should be submitted to the USCIS. To be eligible for either, the individual must have remained in good status during their stay in the U.S., which includes not overstaying his or her departure date.

Q:  What is SEVIS?

A:  SEVIS is the internet-based Student and Exchange Visitor Information System. It is part of the Department of Homeland Security's Student and Exchange Visitor Program (SEVP) and is used to gather information about foreign nationals and their dependents entering the US on student and exchange visitor visas.

When foreign nationals traveling with F, M or J visas reach a port of entry, they are required to show proof that they are traveling to the institution that sponsored their visa, whether a university, junior college, vocational school or other. For example, they may present the plane ticket for their connecting flight or evidence of other travel plans.

The foreign nationals also must have in their possession the I-20 or DS-2019 form, which they would have received upon acceptance to their sponsoring institution. An officer from the Department of Homeland Security (DHS) will inspect these documents upon arrival in the US and also may request:

  • Proof of the student's ability to financially support him or herself during the course of study
  • Receipts from the most recent tuition payment to the institution
  • Transcripts showing requisite education for the intended program
  • Evidence that the student intends to return home after the course of study or other program is complete

The DHS also recommends that students carry the name and contact information for the designated official at the educational institution, in case questions arise about the student's status.

Once a foreign student is admitted into the US by a DHS officer, the school is notified that the student has entered the country. If the student fails to enroll in classes within 30 days of his or her entry date, the school is required to notify DHS. The school also must notify DHS if the student moves, changes address, changes names or changes course of study. The school also is required by law to notify the DHS if it punishes the student because the student was convicted of a crime. All of this information then is stored in SEVIS.

Currently, SEVIS stores information on more than 1 million current students and over 5.6 million student and exchange visitors total. Prior to SEVIS, the US government did not have a coordinated program to determine whether those entering the US on these types of visas ever made it to their end destinations, creating a serious gap in security.

Q:  How Do I Become a Naturalized Citizen?

A:  Naturalization is the process by which foreign nationals can become US citizens. Before beginning the process, it is important that applicants meet all of the requirements for acquiring US citizenship. These requirements include:

  • The applicant must be at least 18 years old
  • The applicant must have held lawful permanent resident status for at least five years (unless you qualify for a shorter time requirement)
  • The applicant must meet the continuous residence requirements, meaning the applicant may not have left the US for more than six months at one time (once continuous residence is broken, the time before the break does not count towards the five years required for naturalization)
  • The applicant must meet the physical presence requirements, which means the applicant must have been actually present in the US for the last 30 months and resided in the US Citizenship and Immigration Services (USCIS) district where he or she submitted the naturalization application for at least the last three months
  • The applicant must demonstrate good moral character, which generally means they may not have committed certain crimes, which can temporarily or permanently bar a naturalization application

If these basic requirements are met, the permanent resident can begin the application process, which includes:

Filing a naturalization application. All applicants for naturalization must submit an Application for Naturalization (Form N-400) to the USCIS office for the district in which they live. Applicants are required to provide passport-style photographs with the application, a copy of the front and back of their Alien Registration Card (i.e. Green Card) and pay the filing fees.

Having your fingerprints taken. After the USCIS receives the naturalization application, the office will send the applicant a notice of the date, time and place to have his or her fingerprints taken. The fingerprints are used to conduct a criminal and security background check on each applicant.

Meeting with a USCIS officer for an interview. If the results from the background check are satisfactory, the applicant will receive notice of the date, time and place of his or her interview. During the interview, the USCIS officer will ask the applicant questions about his or her application and assess the applicant's ability to read, speak and write basic English. The applicant also will be tested on his or her knowledge of US history and government. The applicant must pass both the English and civics exams in order to become a naturalized citizen. (Applicants meeting certain age and residency thresholds may be exempt from the English requirement.) Normally, the applicant will be notified after the interview whether or not he or she has met the requirements for naturalization.

Taking an Oath of Allegiance. The last step to naturalization is taking the Oath of Allegiance, which requires applicants to disavow any foreign allegiances and pledge to uphold and protect the laws of the United States. After the Oath has been completed, applicants are naturalized citizens and receive a Certificate of Naturalization.

Q:  Do I need to hire a lawyer if I need to attend in the Immigration Court?

A:  It is advisable that you hire an attorney to represent you in immigration court. You will be appearing before an Immigration Judge and there will be an attorney representing the immigration service at every hearing you attend. The laws and procedures are very complex and even some inexperienced attorneys are not equipped to navigate them. Find an attorney with whom you are comfortable and who is  experienced and knowledgeable. The Immigration Court can provide a list of low-cost and pro bono (free) attorneys.

 

Contact Bakken Law today to schedule a consultation regarding your immigration case. We will discuss your case with you individually and confidentially and help you to determine if your case requires a lawyer.