Petty Offense Exception for Green Card

Petty Offense Exception

Anytime anyone enters the United States through consular processing or applies to adjust their status, it is important that s/he passes a criminal background check. When applying for legal permanent residence, also known as a “Green Card,” an immigrant can be denied entry or admission to the United States if s/he has committed a “crime involving moral turpitude” (“CIMT”).

A crime involving moral turpitude is defined as a crime that is “inherently base, evil, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”[1] Generally, a crime involving moral turpitude requires evil intent.[2] Examples include murder, manslaughter, rape, spousal abuse, child abuse, robbery, aggravated assault, theft, and fraud, among many others. However, a CIMT can also include crimes that may not seem so serious, but could ultimately affect your immigration case.

However, if you are applying for a green card and have committed a crime, there is a chance that you may qualify for an exception, which essentially “excuses” your criminal conviction. The “petty offense exception” is a waiver of this particular ground of inadmissibility. To qualify for the petty offense exception, you must meet certain criteria. For example, a CIMT is a petty offense if the maximum penalty that you could have received for committing the offense is exactly one year or less; and you personally were sentenced to no more than six months of imprisonment.

Additionally, please keep in mind that not all crimes are eligible for the petty offense exception. The petty offense exception can only apply to one offense, meaning that if you have committed two or more crimes involving moral turpitude, you will not be able to benefit from this exception, regardless of the maximum sentence and amount of time that you served.

It is important to have an experienced immigration attorney review your case if you have any type of criminal conviction since the definitions of crimes for each state are different and specific details may determine whether a particular crime is a CIMT. However, if you do qualify, this form of immigration relief could potentially change your life for the better and allow you to remain in the United States and adjust your status.

For more information or to set up a consultation with our experienced immigration attorney, please contact our office.

EB-5 Alien Entrepreneur Visa

EB-5 Visa

Each year, up to 10,000 visas be authorized to aliens (and their spouses and children) for eligible entrepreneurs. If you have the right combination of skills, education, and/or work experience and are otherwise eligible, you may be able to live permanently in the United States. There are five (5) employment-based immigrant visa preferences/categories, some of which require a prior labor certification, but the fifth preference, EB-5 visa, is the topic of this article.

The fifth preference was created by Congress in 1990 to stimulate the United States economy through job creation and capital investment by foreign investors and is reserved for business investors who invest $ 1 million or $500,000 (if the investment is made in a “targeted employment area”) in a “new commercial enterprise” that employs at least (ten) 10 full-time U.S. workers. The fifth preference does not require a labor certification.

The EB-5 visa is a 3-step process consisting of [Form I-526], Petition by Alien Entrepreneur, [Form I-485], Application to Register Permanent Residence or Adjust Status, and [Form I-829], Petition by Entrepreneur to Remove Conditions. Form I-526 is the first form that should be filed. After approval, one still must adjust status through Form I-485 if in the U.S., or through consular processing if outside the U.S. All forms should be accompanied by the required documentation and evidence to prove the above criteria.

Upon approval of the Form I-485 or admission based on an EB-5 visa, the investor  and his or her derivative (children who must be unmarried and under the age of 21) family members are granted a two-year conditional permanent resident status and must petition to remove the conditions ninety (90) days prior to the two-year period by filing Form I-829. Once the conditions have been removed, a green card is granted for indefinite permanent resident status in the U.S. After 5 years of permanent residency (including the 2 conditional years), an EB-5 investor may apply for U.S. citizenship.

If you have additional questions or would like to begin this process, please contact our office for a consultation with our highly-experienced immigration attorney.

For more information, please visit the USCIS website: http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-investor.

MARRIAGE EQUALITY AT LAST!

MARRIAGE

DOMA

DOMA, or the “Defense of Marriage Act,” was passed in 1996 by Congress and signed into law by President Bill Clinton. Section 3 of DOMA is the part that prevented the federal government from recognizing any marriages between gay or lesbian couples for the purpose of federal laws or programs, even if those couples are considered legally married by their home state.

However, in 2013, in United States v. Windsor (2013), the U.S. Supreme Court declared Section 3 unconstitutional because it violated equal protection rights. In that case, Edith Windsor sued the United States after she was forced to pay over $363,000 in estate taxes after her same-sex spouse died. Had her spouse been a man, she would not have had to pay the tax. Following this decision, Windsor’s marriage will be federally recognized.

The Supreme Court case did not challenge Section 2 of DOMA, which says that individual states do not legally have to acknowledge the relationships of gay and lesbian couples who were married in another state. Only the section that dealt with federal recognition was ruled unconstitutional.

What this basically means is that if a couple’s home state allows them to be legally married, then they will be able to get federal benefits. Federal benefits include: health insurance (and hospital visitation rights) and pension protections for federal employees’ spouses, social security benefits for widows and widowers, support and benefits for military spouses, joint income tax filing and exemption from federal estate taxes, immigration protections for binational couples—binational couples will be allowed to sponsor foreign-born spouses for U.S. residency, and many more.

Those that are married in a state where marriage equality is legal, but live in a state where it is not may have a harder time receiving benefits. Because different organizations base benefits off of where a couple lives, as opposed to where they were married, those who are legally married but live in a state without marriage equality may not be able to take part in these newly accessible benefits.

Following the Supreme Court decision President Obama declared that federal agencies including United States Citizenship and Immigration Services (USCIS) implement regulations which will allow benefits for same-sex couples.

This means that now same-sex couples can apply for benefits of their spouses, and or fiancé. The spouse will be required to show the marriage was valid in the state where it occurred and prove the bonafides of the relationship.

In order to apply for same-sex marriage the citizen spouse should file for a Petition for Alien Relative [Form I-130] on behalf of the Beneficiary or Immigrant spouse for further information about processing these applications please schedule a consultation with our office.