Immigration law, explained before it is urgent

The firm handles immigration matters for individuals and families in Suffolk and Nassau County and across the New York metropolitan area: removal proceedings, asylum and related protection, marriage and family petitions, adjustment of status, waivers, and employment-based cases for employers and workers. Consultations are available in Spanish — see la página en español.

Two things shape how this page is written. First, immigration law is federal, and almost nothing about it is specific to Long Island except where you have to go and who you are likely to encounter. Second, it is changing quickly — so this page describes the statutory framework, which holds, rather than current agency practice, which does not. Where something is genuinely unsettled, it says so instead of guessing.

Removal proceedings and deportation defense

A removal case begins when the Department of Homeland Security files a Notice to Appear with the immigration court. Being served with one does not start the case; filing it with the court does.

The statute requires the Notice to Appear to state the nature of the proceedings, the legal authority for them, the conduct alleged, the charges and the provisions said to be violated, the right to be represented by counsel at no expense to the government, the duty to keep an address current, and the time and place of the hearing. Defects in that last item have been litigated to the Supreme Court twice. A defect is treated as a procedural problem rather than one that deprives the court of jurisdiction, and an objection is generally forfeited if it is not raised before pleading closes — which is a concrete, practical reason not to attend a first hearing alone.

Master calendar and individual hearings

A master calendar hearing is short, crowded and procedural. The judge advises the respondent of their rights; the respondent pleads, conceding or denying service, admitting or denying each factual allegation, and conceding or contesting each charge; designates or declines to designate a country of removal; states what applications for relief will be filed; and receives filing deadlines. Very little of it looks consequential. Most of it is.

An individual hearing is the trial. Witnesses testify under oath, exhibits go in, both sides cross-examine, an interpreter is provided where needed, and the judge decides.

What an immigration judge is

Immigration judges are attorneys appointed by the Attorney General, sitting in the Executive Office for Immigration Review — an agency inside the Department of Justice. They exercise independent judgment but are bound by the statute, the regulations, and decisions of the Board of Immigration Appeals and the Attorney General. These are not Article III courts, the judges are not life-tenured, and the Attorney General may take a case from the Board and decide it himself. Appeals run to the Board of Immigration Appeals, also inside the Justice Department, and only then to a federal court of appeals.

Where a Long Island case is heard

There is no immigration court on Long Island. A non-detained case for a Suffolk or Nassau resident is generally heard in Manhattan. A detained case is heard wherever the person is being held, which may be in New York State or outside it. The Executive Office for Immigration Review publishes a current court locator, and that — not this page — is where the assignment should be confirmed.

Relief from removal

Whether you are removable and whether you can stay are two separate questions. Most relief is discretionary: meeting every element makes you eligible, and the judge then decides.

Cancellation of removal

Two versions, structured very differently.

The version for permanent residents asks about the applicant’s own history: lawful permanent residence for a statutory minimum, continuous residence for a longer statutory period after any lawful admission, and no conviction of an aggravated felony. Then discretion.

The version for everyone else turns on somebody other than the applicant. It requires continuous physical presence for a statutory period, good moral character throughout it, no conviction of specified offenses, and — the element that decides most cases — that removal would cause exceptional and extremely unusual hardship to a qualifying relative: a spouse, parent or child who is a citizen or permanent resident. Hardship to the applicant personally does not count toward it, and the standard is deliberately set above “extreme hardship.”

A parallel route exists for a person battered or subjected to extreme cruelty by a citizen or permanent resident spouse or parent, with a shorter presence requirement, a lower hardship standard, and hardship to the applicant themselves counting.

Two mechanical points. A stop-time rule ends the continuous presence clock when a compliant notice is served or certain offenses are committed — so the clock is often shorter than the calendar suggests. And Congress caps the number of cancellation grants per year, which produces a queue of reserved decisions when the cap is reached.

Withholding of removal

The government may not remove a person to a country where their life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. Compared with asylum it is mandatory rather than discretionary, carries a higher burden, and has no filing deadline — but it confers no path to a green card, no status for family members and no travel document. It bars removal to one country. That is all it does, and for many people it is enough.

Protection under the Convention Against Torture

Two forms: withholding under the Convention, and deferral of removal for people barred from withholding. The applicant must show it is more likely than not they would be tortured, and that the torture would be by, at the instigation of, or with the consent or acquiescence of a public official. There is no protected-ground requirement — the crucial difference from asylum and withholding — and there are no criminal bars to deferral, which sometimes makes it the only protection left to a person with a serious record.

Adjustment of status in proceedings

A respondent with an approved or approvable petition may be able to become a permanent resident before the immigration judge rather than before U.S. Citizenship and Immigration Services. The core requirement is having been inspected and admitted or paroled, plus admissibility and an immediately available visa. A set of bars applies to people who failed to maintain status or worked without authorization — from which immediate relatives are largely exempt. A separate grandfathering provision, tied to a petition or labor certification filed on or before a cutoff date set by Congress, allows some people who entered without inspection to adjust.

Voluntary departure

Leaving on your own terms rather than under a removal order. Requested either early, usually in exchange for conceding removability and waiving appeal, or at the conclusion of proceedings, which requires physical presence for a statutory minimum, good moral character, no disqualifying convictions, clear and convincing evidence of the means and intent to leave, and a bond.

The advantage is avoiding a removal order and the reentry bars that attach to one. The danger is specific and severe: failing to depart within the granted period triggers a civil penalty and a multi-year statutory bar on cancellation, adjustment, voluntary departure and change of status. A grant of voluntary departure that is not honored is worse than no grant at all.

Waivers

A waiver is not relief in itself. It cures a specific ground of inadmissibility so that relief — usually adjustment — becomes available. Most require extreme hardship to a specified qualifying relative, and the list of who qualifies differs from waiver to waiver in ways that matter: for the fraud waiver it is a spouse or parent and not a child. A provisional process exists that lets certain applicants obtain a conditional waiver of the unlawful presence bars before leaving the country for a consular interview, which is the difference between a short trip and a years-long separation. And one bar — the permanent bar that follows reentry after removal or after a year of unlawful presence — has no waiver of this kind at all; the only route is consent to reapply after a statutory period abroad. Pages routinely get that last point wrong.

Asylum

A refugee, in the statutory definition, is a person outside their country who is unable or unwilling to return, and unable or unwilling to seek that country’s protection, because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Those five grounds are the whole of it. Hardship, poverty, generalized violence and bad luck, however severe, are not grounds.

The applicant must show a protected ground was or will be at least one central reason for the persecution. Mixed motives are fine; incidental ones are not. Testimony alone can carry the case if it is credible, persuasive and specific, though the judge may require corroboration.

The one-year rule and its exceptions

An applicant must show by clear and convincing evidence that the application was filed within one year of arrival. This period is set by Congress, not by an agency. Exceptions exist for changed circumstances materially affecting eligibility and for extraordinary circumstances relating to the delay. And the bar does not reach withholding of removal or protection under the Convention Against Torture at all.

Affirmative and defensive

A person not in removal proceedings files affirmatively with U.S. Citizenship and Immigration Services, where an asylum officer adjudicates. A person already in proceedings files defensively with the immigration court, where the judge decides it as relief from removal. The procedures governing affirmative cases have changed recently and remain unsettled; how an affirmative case will actually be handled is a question for the week you file, not for this page.

The bars, and one in particular

Mandatory bars apply to a persecutor of others, to a person convicted of a particularly serious crime, to a serious nonpolitical crime committed abroad, to security and terrorism-related grounds, and to firm resettlement in another country. Separately — and this is the one to take seriously — a knowingly frivolous application renders a person permanently ineligible for any benefit under the immigration laws. That is the concrete reason to be careful about who prepares an application, and it is permanent.

What a grant gives you

An asylee cannot be removed to the country of feared persecution, is authorized to work, and may travel abroad with advance permission. A spouse and unmarried children under 21 can obtain derivative status. Asylum is not permanent — it can be terminated for changed country conditions, fraud, firm resettlement or the mandatory bars — but an asylee may apply to become a permanent resident after a statutory period.

Marriage and family immigration

Petition and application are not the same thing

This single distinction resolves most of the confusion people arrive with.

• A petition is filed by the U.S. citizen or permanent resident and establishes only that the qualifying relationship exists. An approved petition confers no status and no right to remain.
• An application is filed by the beneficiary and is what actually confers status. Admissibility, discretion and every substantive bar are litigated here, not at the petition stage.

People who have had a petition approved often believe the hard part is over. Frequently it has not started.

Immediate relatives and the preference categories

Spouses of U.S. citizens, unmarried children under 21 of U.S. citizens, and parents of an adult U.S. citizen are immediate relatives and exempt from numerical limits — there is no queue. Everyone else falls into preference categories that Congress caps and that are further limited per country. Protections exist for children who turn 21 while waiting, and a petition converts automatically in some cases when the petitioner naturalizes.

Adjustment or consular processing

Adjustment of status happens inside the United States and requires having been inspected and admitted or paroled. Interim work authorization and advance parole are generally available while it is pending.

Consular processing happens at an embassy or consulate abroad. Two risks deserve naming. A consular officer’s refusal is, as a practical matter, not reviewable by any court. And departing the country after accruing unlawful presence can trigger bars that keep you out for years — which is precisely the problem the provisional waiver process was created to solve.

The interview

In a marriage case the interview tests whether the parties intended to build a life together when they married. Where fraud is suspected, spouses may be interviewed separately and their answers compared — a practice that originated in New York litigation and is still most associated with this district.

Conditional residence

If the marriage was less than two years old when residence was granted, that residence is conditional. The couple must jointly file to remove the condition within a window fixed by statute before the second anniversary, attesting under penalty of perjury that the marriage was lawful and not entered into to obtain an immigration benefit, and appear for an interview unless it is waived. Failing to file means automatic termination of permanent resident status on the second anniversary, with removal proceedings following and the burden on the resident. The waivers available when a marriage ends are described in the questions below.

Marriage fraud

The consequences are unusually severe and worth stating plainly. A finding that a person previously sought or obtained an immigration benefit through a marriage entered into to evade the immigration laws creates a permanent, unwaivable bar: no petition of any kind may ever be approved for that person again. No criminal conviction is required; substantial and probative evidence in the record is enough. There is also a separate ground of deportability, and entering such a marriage is a federal crime that reaches the preparer as well as the parties. A marriage entered into while removal proceedings are pending must be proved genuine by clear and convincing evidence.

Green cards, residence and naturalization

“Lawful permanent resident” is a status, not a card. The card is evidence of the status, and an expired card does not end it. But the status is a privilege that can be lost, and it is not citizenship.

Abandonment — the myth worth correcting

A returning permanent resident is generally not treated as seeking admission, with enumerated exceptions: having abandoned the status, having been continuously absent longer than a period set by Congress, certain offenses, or having departed while in proceedings.

The test for abandonment is intent — whether the trip abroad was a temporary visit with a fixed end in view. It is not a calendar. The widespread belief that you keep a green card by returning once a year is wrong, and people rely on it for years before finding out. A person planning a long absence should consider a reentry permit before leaving; a person whose absence has already run long may need a returning resident visa. Abandonment must be proved by the government by clear, unequivocal and convincing evidence, and the card can be surrendered only voluntarily — which is worth knowing at a port of entry.

Naturalization

Permanent residence is the prerequisite. Naturalization requires continuous residence for a period set by Congress, physical presence for part of it, residence in the state or district, good moral character, attachment to the Constitution, English and civics, and the oath. A shorter residence period applies to the spouse of a U.S. citizen who has lived in marital union throughout. Long absences break continuous residence, with preservation mechanisms available in some cases.

Two cautions. No naturalization application may be considered while removal proceedings are pending, which makes sequencing critical. And applying reopens your entire immigration history for examination: a permanent resident with an old conviction or an old misstatement can be placed in removal proceedings by applying to naturalize. The standards applied to good moral character and the scope of the investigation have both been revised recently. This is a decision to take advice on, not a form to fill in.

Business and employment immigration

The organizing distinction is nonimmigrant — a temporary stay for a defined purpose, most categories carrying a presumption against immigrant intent that the applicant must overcome — versus immigrant, which leads to permanent residence. A few categories permit dual intent, which is why they function as bridges to a green card.

The three agencies, and why it matters

Nothing causes more confusion than the assumption that one agency decides. Three do, in sequence:

• The Department of Labor protects the domestic labor market — prevailing wages, labor condition applications and labor certification. It does not grant status.
• U.S. Citizenship and Immigration Services adjudicates the petition, and adjustment of status for those inside the country.
• The Department of State issues the visa abroad and publishes the Visa Bulletin; Customs and Border Protection controls admission at the port of entry.

So: an approved labor certification is not permission to work, an approved petition is not a visa, and a visa is not admission.

The main temporary categories

• H-1B — for a specialty occupation, meaning one requiring theoretical and practical application of highly specialized knowledge and, as a minimum for entry, a bachelor’s degree or higher in the specific specialty. The employer obtains a prevailing wage reference and files a labor condition application with the Department of Labor, then petitions USCIS. Congress caps new H-1B workers annually, with a separate allocation for U.S. advanced-degree holders, and because registrations exceed the caps USCIS runs an electronic registration and selection process. That selection is no longer purely random. Selection is now made per unique beneficiary rather than per registration, and registrations are weighted by wage level, so a higher offered wage produces more entries in the pool. Additional payment requirements have also been imposed on certain H-1B petitions and are being litigated; current requirements must be confirmed before an employer relies on anything.
• L-1 — the intracompany transferee, for a person employed abroad for a year by a related entity and coming to serve the same employer or an affiliate in a managerial or executive capacity, or in one involving specialized knowledge. No numerical cap. The managerial and executive route maps onto an immigrant category that requires no labor certification.
• O-1 — extraordinary ability in the sciences, education, business or athletics, demonstrated by sustained national or international acclaim, or extraordinary achievement in film and television. No cap. Requires an advisory opinion from a peer group or labor organization.

Labor certification

For most employment-based green cards the employer must first obtain certification from the Secretary of Labor that there are not sufficient U.S. workers able, willing, qualified and available for the job where it is located, and that employing the foreign worker will not adversely affect wages and working conditions.

The process is a genuine test of the labor market, prescribed step by step by regulation: a prevailing wage determination, a state workforce agency job order, newspaper advertising, additional recruitment for professional positions, an internal notice of filing, and documented, lawful, job-related reasons for rejecting any applicant — measured against minimum requirements that have not been tailored to the intended beneficiary. The Department of Labor may audit or order supervised recruitment. The employer, not the worker, is the applicant, and the filing date establishes the priority date that governs everything afterward.

Priority dates and the Visa Bulletin

Congress sets annual worldwide limits and a per-country limit that applies regardless of a country’s population. Visas issue in the order petitions were filed. Your priority date is your place in that line. The Department of State publishes the Visa Bulletin monthly with two charts per category: final action dates, which govern when a visa may actually be issued or an adjustment approved, and dates for filing, an earlier cutoff that may permit an application to be submitted in advance. A green card cannot be approved before the priority date is current. This is a rationing question, not a processing question, and no amount of follow-up changes it.

Notario fraud, and how to avoid it

In much of Latin America and continental Europe, a notario público is a trained legal professional with substantial authority. In the United States a notary public may witness signatures and administer oaths, and nothing more. Fraudulent providers trade on that false cognate, and the New York metropolitan area has one of the worst concentrations of the problem in the country.

Who is actually allowed to represent you

Before the immigration courts and the immigration agencies, representation is limited to attorneys in good standing of a U.S. state bar; accredited representatives of organizations recognized by the Department of Justice; supervised law students and graduates; and a small number of other categories. A notary public is not on that list. The roster of recognized organizations and accredited representatives is public and can be checked.

What New York law forbids

New York’s General Business Law regulates non-attorney immigration assistance providers directly. A provider may not give legal advice or practice law; may not use the title of lawyer or attorney; may not use the terms “notario publico,” “notario,” “immigration consultant” or comparable titles in any advertisement; may not make false statements or claim special influence with a government agency; may not demand fees for services not performed; may not charge for government forms, which are free; may not disclose information to immigration authorities without consent; may not threaten to report a customer to immigration authorities; and may not fail to return a customer’s original documents. Providers must give a written contract in a language the customer understands, must allow cancellation and refund, must return originals and the file even in a fee dispute, and must post multilingual signage disclosing the limits of what they do. The New York Attorney General enforces this and takes complaints.

A short list to keep

• “Notario,” “immigration consultant” and similar titles are not legal credentials in New York, and advertising them is itself illegal.
• Government forms are free. Anyone charging for a blank form is breaking the law.
• Never sign a blank form, never sign one you cannot read, and never sign anything you are not given a copy of. The form is signed under penalty of perjury by you.
• Demand and keep your originals. A provider holding your passport or birth certificate is a warning sign, not a filing system.
• Get a written retainer, in a language you understand, stating exactly what will be filed and what it costs.
• Nobody can guarantee a result, produce a work permit in weeks, claim a relationship with a particular officer or judge, or move your priority date.
• Checking a case status is free. You were never required to pay anyone to do it.
• Anyone who threatens to report you to immigration authorities because you complained has committed a prohibited act, and that threat is itself grounds for a complaint.

Documents to bring

The first meeting goes faster and produces better advice if you bring whatever you have of the following. Missing items are normal — bring what exists.

• Every document you have received from any immigration agency or court, including envelopes
• Your passport, and any prior passports, with all visa pages
• Any green card, work permit, or other identity document issued to you
• Your entry record, if you have one, and anything showing how and when you last entered
• Any prior applications or petitions filed for you or by you, and who prepared them
• Marriage, birth, divorce and death certificates for everyone relevant, with translations
• Certified dispositions for any arrest or charge anywhere, however old and however minor
• Proof of continuous presence — tax returns, leases, pay records, school and medical records
• For a hardship case: medical, school, financial and country-conditions evidence for the qualifying relative
• The name and contact details of anyone who has prepared paperwork for you before

Frequently asked questions