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Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.

Emma Lazarus, an American writer of Portugese-Jewish ancestry (1883)

A member of the Seton Hall University Center for Social Justice, Mr. Pedroso assisted countless individuals who were victims of political persecution from the Haitian government in the mid-1990’s. His efforts from initial asylum application to immigration hearings, resulted in many victims of abuse gaining a safety nest in the United States to rebuild their lives, safe from violence and threats of death. Pedroso Law P.C. has built upon that dedication of helping immigrants, and continues to provide services to those families in need of establishing a legal status in the United States. We place emphasis on 2 types of applications: (1) application for permanent status (green card), and (2) application for Citizenship.

General information

Immigration law: an overview

Federal immigration law determines whether a person is an alien, the rights, duties, and obligations associated with being an alien in the United States, and how aliens gain residence or citizenship within the United States. It also provides the means by which certain aliens can become legally naturalized citizens with full rights of citizenship. Immigration law serves as a gatekeeper for the nation's border, determining who may enter, how long they may stay, and when they must leave.

Congress has complete authority over immigration. Presidential power does not extend beyond refugee policy. Except for questions regarding aliens' constitutional rights, the courts have generally found the immigration issue as nonjusticiable.

States have limited legislative authority regarding immigration, and 28 U.S.C. § 1251 details the full extent of state jurisdiction. Generally, 28 U.S.C. § 994 details the federal sentencing guidelines for illegal entry into the country.

By controlling the visa process, the federal government can achieve the goals of its immigration policies. There are two types of visas: immigrant visas and nonimmigrant visas. The government primarily issues nonimmigrant visas to tourists and temporary business visitors. The government divides nonimmigrant visas into eighteen different types, but for most types, does not impose a cap on the number that may be granted in a year. Only a few categories of non-immigrant visas allow their holders to work in the United States. Immigrant visas, on the other hand, permit their holders to stay in the United States permanently and eventually to apply for citizenship. Aliens with immigrant visas can also work in the United States. Congress limits the quantity of immigrant visas, which numbered 675,000 in 1995. Many immigrant visas remain subject to per-country caps.

Early history of American immigration law

Congress's first attempt to set immigration policy came in 1790 with the enactment of the Naturalization Act of 1790. This Act restricted naturalization to "free white persons" of "good moral character" and required the applicant to have lived in the country for two years prior to becoming naturalized. In 1795 an amendment increased the residency requirement to five years. The five-year requirement remains on the books to this day.

Upon ratification of the Fourteenth Amendment, all children born within the United States received citizenship at birth. In 1870 Congress broadened naturalization laws to allow African-Americans the right to become naturalized citizens. Asian Americans, however, did not receive such a right for many years. Xenophobia from an influx of Asians between 1850 and 1882 prompted Congress to pass the Chinese Exclusion Act, which restricted further Chinese immigration.

In 1921 Congress passed the Emergency Immigration Act, creating national immigration quotas, which gave way to the Immigration Act of 1924, capping the number of permissible immigrants from each country in a manner proportional to the number already living within the United States. The aggregate number from the eastern hemisphere could not eclipse 154,227 immigrants. Franklin D. Roosevelt's Administration essentially closed to the country to immigration essentially during the Great depression, drastically reducing the numbers per country that could enter the United States.

Modern immigration law

The Immigration and Nationality Act of 1952 (INA), also known as the McCarran-Walter Act, eliminated all race-based quotas, replacing them with purely nationality-based quotas. The INA continues to influence the field of American immigration law. To enforce the quotas, the INA created the Immigration and Naturalization Service (INS). The INS╩served as the federal agency that enforced these caps for remainder of the 20th century.

When Congress passed the INA, it defined an "alien" as any person lacking citizenship or status as a national of the United States. Different categories of aliens include resident and nonresident, immigrant and nonimmigrant, and documented and undocumented ("illegal"). The terms "documented" and "undocumented" refer to whether an arriving alien has the proper records and identification for admission into the U.S.. Having the proper records and identification typically requires the alien to possess a valid, unexpired passport and either a visa, border crossing identification card, permanent resident card, or a reentry permit. The INA expressly refuses stowaway aliens entry into the U.S..

The need to curtail illegal immigration prompted Congress to enact the Immigration Reform and Control Act (IRCA) of 1986. The IRCA toughened criminal sanctions for employers who hired illegal aliens, denied illegal aliens federally funded welfare benefits, and legitimized some aliens through an amnesty program. The Immigration Marriage Fraud Amendments of 1986 sought to limit the practice of marrying to obtain citizenship. The Immigration Act of 1990 thoroughly revamped the INA by equalizing the allocation of visas across foreign nations, eliminating archaic rules, and encouraging worldwide immigration.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 revolutionized the process of alien entry into the United States. The IIRIRA eliminated the term "entry," replacing it with "admission." An application for admission occurs whenever an alien arrives in the U.S. regardless of whether the arrival occurs at a designated port-of-entry. Applicants at either designated ports or otherwise must submit to an inspection by U.S. customs, even if the applicant possesses an immigrant visa. The IIRIRA also employs the term "arriving alien" to describe applicant aliens attempting to enter the U.S., regardless of whether they arrive at a designated port, a non-designated point on the border, or are located in U.S. waters and brought to shore.

Post-9/11 reform

On March 1, 2003, the Department of Homeland Security opened, replacing the INS. The Bush Administration had designed the Department of Homeland Security to foster increased intelligence sharing and dialogue between agencies responsible for responding to domestic emergencies, such as natural disasters and domestic terrorism. Within the Department, three different agencies - U.S. Customs and Border Enforcement (CBE), U.S. Citizenship and Immigration Services (USCIS), and U.S. Immigration and Customs Enforcement (ICE) - now handle the duties formerly held by the INS. Currently, the CBE handles the INS's border patrol duties, the USCIS handles the INS's naturalization, asylum, and permanent residence functions, and the ICE handles the INS's deportation, intelligence, and investigatory functions.

Refugee and asylum seekers

The Refugee Act of 1980 defines the U.S. laws relating to refugee immigrants. Under the Refugee Act, the term "refugee" refers to aliens with a fear of persecution upon returning to their homelands, stemming from their religion, race, nationality, membership in certain social groups, or political opinions. Anyone who delivers a missing American POW or MIA soldier receives refugee status from the United States.

The United States, however, denies refugee status to any alien who actively persecuted individuals of a certain race, political opinion, religion, nationality, or members of a certain social group. As a matter of public policy, the government also typically refuses refugee applicants previously convicted of murderer. For refugees who have "firmly resettled" in another country, the United States will deny a request for refugee admission. The government considers refugees "firmly resettled" if the refugees have received an offer of citizenship, permanent residency, or some other permanent status from a foreign country.

Under international law, the Geneva Convention, or the laws of the United States, foreign citizens who have become disillusioned with their homeland cannot take temporary refuge within the United States. The Refugee Act of 1980 specifically leaves out temporary refuge as a form of refugee status that the U.S. government will recognize.

To qualify for refugee status under the persecution provision, the refugee applicant must prove actual fear. A proof of actual fear requires meeting both a subjective and an objective test. The subjective test requires that the refugee actually have an honest and genuine fear of being persecuted for some immutable trait, such as religion, race, and nationality. Seekers of asylum must show a fear that membership in a social or political group has caused past persecution or has caused a well-founded fear that persecution will occur upon returning. The applicant meets the objective standard by showing credible and direct evidence that a reasonable possibility of persecution exists upon the applicant's return to the homeland.

The President retains the ultimate decision making authority when determining the number of refugees to allow into the country during a given year.

Deportation

Deportation refers to the official removal of an alien from the United States. The U.S. government can initiate deportation proceedings against aliens admitted under the INA that commit an aggravated felony within the United States after being admitted. An alien's failure to register a change of address renders the alien deportable, unless the failure resulted from an excusable circumstance or mistake. If the government determines that a particular alien gained entry into the country through the use of a falsified document or otherwise fraudulent means, the government has the grounds to deport.

Other common grounds for deportation include the following: aiding or encouraging another alien to enter the country illegally; engaging in marriage fraud to gain U.S. admission; participating in an activity that threatens the U.S.'s national security; voting unlawfully; and failing to update the government with a residential address every three months, regardless of whether the address has changed. The last of these policies served as the grounds for the government to deport 2,000 Pakistanis following the September 11th attacks.

If the government brings a proceeding for deportation because of fraud or falsification, the government bears the burden of proving by clear and convincing evidence that alleged falsification or fraud occurred and that the falsification or fraud proved material to the granting of admission to the alien. Upon such a proof, the government has established a rebuttable presumption that the alien gained admission through material falsification or fraud. To rebut the presumption, the alien must demonstrate by a preponderance of the evidence that admission would have been granted even without the falsification or fraud.

Source: Cornell University Law School, Legal Information Instiute.

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Green Card / Permanent Residence

Who qualifies for a green card?

A green card identifies its holder as a U.S. permanent resident, with rights to enter, exit, work, and live here for their entire life. But before you think about applying, make sure you're eligible under one of the following categories.

1. Immediate Relatives of U.S. Citizens

Immediate relatives include:

• spouses of U.S. citizens, including recent widows and widowers

• unmarried people under age 21 with at least one U.S. citizen parent

• parents of U.S. citizens, if the U.S. citizen child is at least age 21

• stepchildren and stepparents of U.S. citizens, if the marriage creating the stepparent/stepchild relationship took place before the child's 18th birthday, and

• adopted children of U.S, if the adoption took place before the child reached age 16.

An unlimited number of green cards are available for immediate relatives whose U.S. citizen relatives petition for them -- applicants can get a green card as soon as they get through the paperwork and application process.

2. Other Family Members

Certain family members of U.S. citizens or permanent residents are also eligible for green cards -- but not right away. They fall into the "preference categories" listed below, meaning that only a certain number of them will receive green cards each year (480,000). The system is first come, first served -- the earlier the U.S. citizen or permanent resident turns in a visa petition, the sooner the immigrant can apply for a green card. The waits range from approximately three to 24 years in the family preference categories, which include:

• Family First Preference. Unmarried adults, age 21 or older, who have at least one U.S. citizen parent.

• Family Second Preference. Section 2A: Spouses and unmarried children of a green card holder, so long as the children are younger than age 21. Section 2B: Unmarried children age 21 or older of a green card holder.

• Family Third Preference. Married people, any age, who have at least one U.S. citizen parent.

• Family Fourth Preference. Sisters and brothers of U.S. citizens, where the citizen is age 21 or older.

3. Preferred Employees and Workers

A total of 140,000 green cards are offered each year to people whose job skills are needed in the U.S. market. In most cases, a job offer is also required, and the employer must prove that it has recruited for the job and not found any willing, able, qualified U.S. citizens or residents to hire instead of the immigrant. Because of annual limits, this is a "preference category," and applicants often wait years for an available green card. Here are the subcategories:

Employment First Preference. Priority workers, including:
• persons of extraordinary ability in the arts, the sciences, education, business, or athletics
• outstanding professors and researchers, and
• managers and executives of multinational companies.

Employment Second Preference. Professionals with advanced degrees or exceptional ability.

Employment Third Preference. Professionals and skilled or unskilled workers.

Employment Fourth Preference. Religious workers and miscellaneous categories of workers and other "special immigrants" (described below).

Employment Fifth Preference. Investors willing to put $1 million into a U.S. business – or $500,000 if the business is in an economically depressed area. The business must employ at least ten workers.

4. Green Card Lotteries: Ethnic Diversity

A certain number of green cards (currently 50,000) are made available to people from countries that in recent years have sent the fewest immigrants to the United States.

5. Special Immigrants

Occasionally, laws are passed making green cards available to people in special situations. The current special immigrant categories are:

• clergy and other religious workers for legitimate religious organizations

• foreign medical graduates who have been in the United States since 1978

• former employees of the Panama Canal Zone

• foreign workers who were longtime employees of the U.S. government

• retired officers or employees of certain international organizations who have lived in the United States for a certain time

• foreign workers who were employees of the U.S. consulate in Hong Kong for at least three years

• foreign children who have been declared dependent in juvenile courts in the United States

• international broadcasting employees, and

• certain members of the U.S. Armed Forces who enlisted overseas and served 12 years.

6. Refuge and Political Asylum

The U.S. government offers refuge to people who fear, or have experienced, persecution in their home country. A person still outside the United States would apply to be a refugee; a person already here would apply for asylum.

The persecution must be based on the person's race, religion, nationality, political opinion, or membership in a particular social group. If you are fleeing only poverty or random violence, you do not qualify in either category.

7. Amnesty and Special Agricultural Worker Status

Years ago, a green card based on "amnesty" was offered to people who had been living in the United States illegally since January 1, 1982. There was a similar amnesty for laborers who worked in the fields for at least 90 days between May 1, 1985 and May 1, 1986. Although the application deadlines have long passed, certain class action lawsuits mean that some applications haven't yet been decided on. See an attorney if you should have qualified.

In 1997, Congress added an amnesty for Nicaraguans and Cubans, called the Nicaraguan Adjustment and Central American Relief Act (NACARA). Some provisions also benefit Salvadorans, Guatemalans, and Eastern Europeans. The deadline for filing applications has passed.

8. Long-Time Residents

The law allows certain people who have lived illegally in the United States for more than ten years to request permanent residence as a defense in immigration court proceedings. This remedy is called "cancellation of removal." You must also show that your spouse, parent, or children -- who must be U.S. citizens or permanent residents -- would face "exceptional and extremely unusual hardship" if you were forced to leave. Consult a lawyer if you think you qualify. Do not go straight to USCIS -- you could cause your own deportation (removal).

Another remedy called "registry" allows people who have lived in the United States continuously since January 1, 1972 to apply for a green card. You'll need to show that you have good moral character and are not inadmissible. Your stay in the United States need not have been illegal -- time spent on a visa counts.

9. Special Cases

Individual members of the U.S. Congress have, on occasion, intervened for humanitarian reasons in extraordinary cases, helping someone get permanent residence even if the law would not allow it.

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Naturalization

Citizenship Through Naturalization

Naturalization is the process by which U.S. citizenship is granted to a foreign citizen or national after he or she fulfills the requirements established by Congress in the Immigration and Nationality Act (INA). In most cases, an applicant for naturalization must be a permanent resident (green card holder) before filing.  Except for certain U.S. military members and their dependents, naturalization can only be granted in the United States.

An overview

Naturalization refers to conferring U.S. citizenship after birth upon someone who lacks U.S. citizenship. To be eligible for naturalization, an applicant must have reached the age of 18. Neither states nor Congress may abridge the right of an alien to become a naturalized U.S. citizen based upon the applicant's race, sex, or marital status. Applicants bear the burden of proving by a preponderance of the evidence that they have met every eligibility requirement.

One element involves an English literacy test. The applicant must demonstrate some comprehension in understanding, speaking, reading, and writing the English language unless the applicant suffers from a disability that prevents compliance with this requirement. Additionally, the applicant must demonstrate some knowledge regarding basic United States history and some knowledge regarding the governmental system within the United States. The disability exemption applies to this civics requirement as well.

A second element requires the applicant to have previously lived lawfully within the United States for at least five years. During those five years, the alien must have remained physically present within the country for at least half of that time. Illegal immigrants cannot later become naturalized U.S. citizens.

Third, the applicant must demonstrate good moral character. The Bureau of Citizenship and Immigration Services evaluates moral character within the context of a given community, comparing the applicant's record to the record of the average citizen residing therein.

Fourth, applicants must show a basic acceptance for the United States' form of government, which is typically referred to as "attachment" to the Constitution. An attachment to the Constitution means that the applicant will not try to effect political change through violence or infringe upon the rights and liberties of other U.S. citizens. The Bureau may disqualify applicants with histories that affiliate them with the Communist Party and other authoritarian regimes.

Fifth, naturalization requires applicants to have a favorable disposition toward the United States.

Courts generally apply a rebuttable presumption that applicants have good moral character, an attachment for the Constitution, and a favorable disposition toward the United States. While mental incompetency during the statutory period does not per se exclude an applicant, the Bureau of Citizenship and Immigration Services may use the mental health history as evidence against the legal presumption that the applicant has good moral character, attachment to the principles of the United States Constitution, and a favorable disposition toward the United States.

U.S. citizenship provides many rights, but also involves many responsibilities. Thus, the decision to become a U.S. citizen through naturalization is important. In most cases, a person who wants to naturalize must first be a permanent resident. By becoming a U.S. citizen, you gain many rights that permanent residents or others do not have, including the right to vote. To be eligible for naturalization, you must first meet certain requirements set by U.S. law.

What are the basic requirements to apply for naturalization?

Certain family members of U.S. citizens or permanent residents are also eligible for green cards -- but not right away. They fall into the "preference categories" listed below, meaning that only a certain number of them will receive green cards each year (480,000). The system is first come, first served -- the earlier the U.S. citizen or permanent resident turns in a visa petition, the sooner the immigrant can apply for a green card. The waits range from approximately three to 24 years in the family preference categories, which include:

• Be age 18 or older;

• Be a permanent resident for a certain amount of time (usually 5 years but less for some individuals);

• Be a person of good moral character;

• Have a basic knowledge of U.S. history and government;

• Have a period of continuous residence and physical presence in the United States; and

• Be able to read, write, and speak basic English. There are exceptions to this rule for someone who:
- Is 55 years old and has been a permanent resident for at least 15 years; or 
- Is 50 years old and has been a permanent resident for at least 20 years; or
- Has a permanent physical or mental impairment that makes the individual unable to fulfill these requirements. 

When can I apply for naturalization?

You may be able to apply for naturalization if you are at least 18 years of age and have been a permanent resident of the United States:

• For at least 5 years; or

• For at least 3 years during which time you have been, and continue to be, married to and living in a marriage relationship with your U.S. citizen spouse; or

• While currently serving honorably in the U.S. military, with at least 1 year of service, and you apply for citizenship while in the military, or within 6 months of discharge.

Certain spouses of U.S. citizens, and those who served in the U.S. military during a past war or are serving currently in combat may be able to file for naturalization sooner than noted above.

How to Apply for Naturalization

To apply for naturalization, file Form N-400, Application for Naturalization, and you will need to pass the Naturalization Test, which tests English, U.S. history and civics.

You may also qualify through other paths to naturalization if you do not qualify through the paths described above.

Note: You may already be a U.S. citizen and not need to apply for naturalization if your biological or adoptive parent(s) became a U.S. citizen before you reached the age of 18.  See the “Citizenship through Parents” link to the left.

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NJ Law Help is proud to help you reach your immigration and citizenship dreams.

USCIS Fees

Form
Number
Title USCIS
Fee
Biometrics
Fee
AR-11 Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer $110 N/A
EOIR-29 Alien’s Change of Address Card No Fee N/A
G-28 Notice of Entry of Appearance as Attorney or Accredited Representative No Fee N/A
G-28I Notice of Entry of Appearance as Attorney in Matters Outside the Geographical Confines of the United States No Fee N/A
G-325A Biographic Information (for Deferred Action) No Fee N/A
G-639 Freedom of Information Privacy Act Request
*No fees are required until you are notified by USCIS during the processing of your request
No Fee* N/A
G-845 Verification Request No Fee N/A
G-845
Supplement
Form G-845 Supplement, Verification Request No Fee N/A
G-884 Request for the Return of Original Documents No Fee N/A
G-1041 Genealogy Index Search Request
Not eligible for a fee waiver
$65 N/A
G-1041A Genealogy Records Request (For each microfilm or hard copy file)
Not eligible for a fee waiver
$65 N/A
G-1145 e-Notification of Application/Petition Acceptance No Fee N/A
G-1450 Authorization for Credit Card Transactions No Fee N/A
H-1B
Registration
H-1B Registration (per beneficiary) $10 N/A
I-9 Employment Eligibility Verification No Fee N/A
I-90 Application to Replace Permanent Resident Card $455 $85
If filing to renew your card within 30 days of turning 14 years of age and the existing card will expire BEFORE your 16th birthday. $455 $85
If filing to renew your card within 30 days of turning 14 years of age and the existing card will expire AFTER your 16th birthday. No Fee $85
If filing because your previous card was issued but never received. No Fee N/A
If filing because the card was issued with incorrect information because of a DHS error. No Fee N/A
I-102
Not eligible for a fee waiver
Application for Replacement/Initial Nonimmigrant Arrival-Departure Document $445 N/A
Request to correct your Form I-94, I-94W, or Form I-95:
1. If the error on your document was made by USCIS.
2. If the error was made because of information you provided or Reproduction failed to provide to USCIS or the U.S. Department of State (DOS).
1. No Fee
2. $445
1. N/A
2. N/A
If you are a nonimmigrant military member in the U.S. Armed Forces or you are participating in a NATO or Partnership for Peace military program under the SOFA and you are requesting an initial Form I-94. No Fee N/A
I-129 Petition for a Nonimmigrant Worker
* A biometric services fee is required if the alien is lawfully present in the CNMI when applying for an initial grant of nonimmigrant status.
$460 N/A*
Supplemental fees are required from certain employers for the American Competitiveness and Workforce Improvement Act (ACWIA) or Fraud Prevention and Detection. To determine if you are required to pay these fees, see the “What Is the Filing Fee” section of Form I-129 Instructions. See Form Inst. N/A*
I-129CW
Not eligible for a fee waiver
Petition for a CNMI-Only Nonimmigrant Transitional Worker $460 N/A
If the beneficiary is present in the CNMI and filing for initial grant of CW-1 status. $460 $85
A supplemental educational funding fee per beneficiary, per year, is mandated by Public Law 110-229. This fee cannot be waived. $200 N/A
Public Law 110-229, as revised by the Northern Mariana Islands U.S. Workforce Act of 2018, requires a fraud prevention and detection fee per petition, per year. $50 N/A
I-129F
Not eligible for a fee waiver
Petition for Alien Fiance'(e) $535 N/A
For K-3 status based on Form I-130, Petition for Alien Relative, filed by the same U.S. citizen spouse. No Fee N/A
I-129S Nonimmigrant Petition Based on Blanket L Petition No Fee N/A
Fees are required from some petitioners for Fraud Prevention and Detection and Public Law 114-113. To determine if you are required to pay these fees, see the “What Is the Filing Fee” section of Form I-129S Instructions. See Form Inst. N/A
I-130
Not eligible for a fee waiver
Petition for Alien Relative $535 N/A
I-131 Application for Travel Document Varies Varies
If filing for a Reentry Permit for an applicant who is:
1. Under 14 years of age or 80 years of age or older; or
2. 14 years of age and older but under 80 years of age.
1.$575
2.$575
1.N/A
2.$85
If filing for a Refugee Travel Document for an applicant who is:
1. Under 14 years of age;
2. 14 years of age or older, but under 16 years of age;
3. 16 years of age or older, but under 80 years of age;
4. 80 years of age or older.
1.$105
2.105
3.$135
4.$135
1.N/A
2.$85
3.$85
4.N/A
If filing for an Advance Parole Document. $575 N/A
If filing for an Advance Parole Document for Dependent Spouse/ Unmarried Minor Children of an Individual Seeking or in the United States Based on Entrepreneur Parole.
*A biometric services fee is required for applicants 14 through 79 years of age.
$575 $85*
If you filed Form I-485 on or after July 30, 2007, and you paid the required Form I-485 application fee, then no fee is required to file for an Advance Parole Document or a Refugee Travel Document. No Fee N/A
I-131A
Not eligible for a fee waiver
Application for Travel Document (Carrier Documentation) $575 N/A
I-134 Affidavit of Support No Fee N/A
I-140
Not eligible for a fee waiver
Immigrant Petition for Alien Worker $700 N/A
I-191 Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA) $930 N/A
I-192 Application for Advance Permission to Enter as a Nonimmigrant Varies N/A
If filing with USCIS $930 N/A
If filing with CBP $585 N/A

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NJ Law Help
A Pedroso Legal website
www.NJLawHelp.com

Our Address

892 US Highway 22
Somerville, NJ 08876
By Appointment Only
T: 732-200-2300