Immigration FAQ

FAQ Categories:

Education

Can I go to college?

Yes, there is no federal law to prevent you from being accepted to a school because of your legal status. However, there is also no law requiring schools to accept you with your current status. Most schools will accept you as they will charge out-of-state tuition thus making more money off of you so getting into school won’t be the hard part, paying for it will be.

Do I qualify for instate tuition?

No, unless you live in the 10 states which provide in-state tuition to children without legal status (Texas, California, Utah, Washington, New York, Illinois, Kansas, Minnesota, New Mexico, and Nebraska.) In 2008 Oklahoma passed HB 1804 ending the in-state tuition law it had previously passed.

If I do live in a state with in-state tuition, how do I qualify?

You must meet ALL of the following requirements (please note each state may have additional requirements which you must meet, please see above links for details):

  1. Attend a school in the state for a certain number of years;
  2. Graduate from high school in the state; and
  3. Sign an affidavit stating that they have either applied to legalize their status or will do so as soon as eligible.

Am I eligible for FAFSA, federal funding, financial aid etc.?

No, although you are eligible for private scholarships.

What scholarships am I eligible for?

Please visit this page for a comprehensive list of scholarships available to you.

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Finances

Can I open a bank account?

Bank of America is known for offering accounts to anyone who can prove their identity (i.e. a visa, school id etc.) and has an ITIN, so if you have both of those then head over to your local branch office and get an account. If you are still unsure about this process please check out this informative post on DAP.

Can I get a bank loan?

This is something that really differs from bank to bank. At one point bank’s would offer house loans to those with ITIN’s and proof of a steady income, however this has been limited over the years.

Can I get a student loan?

Yes, again as said above, this varies from bank to bank. We have confirmation that Sallie Mae has a tuition answer loan that is open to everyone regardless of status. To qualify you need a US Citizen to apply for it and get approved, they then list you as the “student” on the loan. According to this thread on DAP the loan is currently not active, however a member was able to confirm that the loan would again be made available in the coming months. Citibank also has a loan program that you would need a citizen or LPR co-signer for.

Can I apply for health insurance coverage?

Yes. When filling out the form, indicate that you will be providing your ITIN instead of a SSN. Your immigration status alone will not prevent you from getting insurance.

If you are a student going to school full-time, you should be covered under your parents’ health insurance. However, if this is not the case, check with your school as some offer health insurance plans or actually have well-equipped medical centers.

Can I get a credit card?

Yes, check with your local bank.

Bank of America has a secured visa program. When criticized about giving credit cards to undocumented immigrants, BOA stated:

“We created this pilot program in Los Angeles to help Bank of America customers with little or no credit history build a solid credit history with a leading bank, and to strengthen our relationships with individuals and families we hope will become loyal Bank of America customers in the future as their financial needs grow. As with all our products, the program meets the identification requirements of the USA Patriot Act, U.S. Treasury Department regulations and internal fraud prevention procedures. The bank requires that all applicants provide us approved forms of ID, including an unexpired, U.S. government-issued or foreign government-issued identification card. In fact, while many people legally in our country do not possess Social Security numbers, 84% of the participants in our pilot do. The remaining 16% meet the requirements for government-issued ID as set forth above.”

Most card companies will allow for you to get a credit card as long as you have at least an ITIN. If the online application does not allow for you to submit without a SSN then call the card company and do the application over the phone.

Can I get a cell phone?

Yes, visit your local provider. You will be asked to put down a large deposit if you do not have a SSN (at least $250). MetroPCS is also a popular choice and does not require a Social Security Number.

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Identification

Important – Never claim to be a U.S. citizen on any official document. This may bar you from the U.S. for life.

Working with a fake social security number has been treated as ‘aggravated identity theft’ in some cases. The Supreme Court has taken up this matter.

Flores-Figueroa v. United States, 274 Fed. Appx. 501, (8th Cir. 2008), cert. granted, 2008 U.S. LEXIS 7827 (U.S. October 20, 2008) (No. 08-108) .

  • 8th Circuit Opinion: Flores-Figueroa v. United States (pdf)
  • Petition for Supreme Court Review: Flores-Figueroa v. United States (pdf)
  • Government’s Brief Regarding Supreme Court Review: Flores-Figueroa v. United States (pdf)
  • Flores-Figueroa’s Reply to Government’s Brief: Flores-Figueroa v. United States (pdf)

Can I get a driver’s license?

You might qualify for a drivers license if living in the following states: Hawaii or Washington. Although these states may not require you to provide proof of legal status, you may have to provide an SSN and/or attest to never having received one.

What can I use as a photo ID for the theater, clubs etc.?

You can use your Matricula Consular, passport and/or school ID.

If you are a citizen of a country then you are eligible for a passport from that country, do you have one that is not expired? If you are in need of one or would like to find out more information about getting one please contact your countries consular office, a directory of them can be found here.

Can I travel via airplane?

You can travel anywhere domestically in the United States with an unexpired passport or state ID card.

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Social Security Number (SSN)

What is a SSN?

A number in the United States assigned to each and every person with legal status for identification purposes.

Why do I need one?

To work legally you must have a valid SSN. In most states, to get a driver’s license you must have a SSN. To qualify for any sort of government assistance you need a valid SSN, i.e. food stamps.

How do I get one?

If you are a U.S. citizen, Social Security must see your:

  • U.S. driver’s license;
  • State-issued non-driver identity card; or
  • U.S. passport.

If you do not have these specific documents or cannot get a replacement for them within 10 days, you will need additional documents:

  • Eployee ID card;
  • School ID card;
  • Health insurance card (not a Medicare card);
  • U.S. military ID card; or
  • Adoption decree.

If you are not a U.S. citizen, Social Security must see your current U.S. immigration documents. Acceptable documents from the Department of Homeland Security include your:

  • Form I-551 (includes machine-readable immigrant visa with your un-expired foreign passport);
  • I-94 with your un-expired foreign passport; or
  • Work permit card (I-766 or I-688B).

Please visit http://www.socialsecurity.gov/ for more information.

What can I do if I don’t qualify?

An Individual Taxpayer Identification Number, ITIN can be issued to anyone (with or without status).

What is an ITIN?

A 9 digit number (9xx-7x-xxx) number issued through the IRS (Internal Revenue Service) for tax purposes.

Who qualifies for an ITIN?

  • Non-resident alien filing a U.S. tax return and not eligible for an SSN
  • U.S. resident alien (based on days present in the United States) filing a U.S. tax return and not eligible for an SSN
  • Dependent or spouse of a U.S. citizen/resident alien

    • Dependent or spouse of a non-resident alien visa holder

Can I work with an ITIN?

No, an ITIN does not alter your immigration status or your ability to work legally within the United States.

How do I apply for an ITIN?

You must complete the January 2007 revision of Form W-7. For detailed information, including who you can contact for help filing your W-7 form, please visit the IRS homepage.

After applying how long does it take to receive my ITIN?

It will take up to six weeks for your application to be processed and for you to receive your number.

Do I have to file taxes?

Yes, everyone regardless of status must file taxes yearly. Based on your income you may be eligible for a refund. If you do not have a SSN, use your ITIN to file your taxes.

Will immigration be informed when I file taxes?

No, immigration will not be informed when you file taxes as everyone living in the US and working (receiving any sort of income) is expected to file.

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Immigration Law

Never claim to be a U.S. citizen for any purpose.

Never let anyone call you a ‘criminal’ for mere illegal presence in the United States.

What is my current immigration status?

  • U.S. Citizen: If you have a (legit) United States birth certificate and/or a U.S. passport, then you are most likely a United States citizen. Everyone born in the U.S. is a citizen, but not all citizens were born in the U.S., so place of birth isn’t the only factor. You can either be a citizen by birth or a naturalized citizen. As a citizen, you can legally work, vote, and travel outside the U.S. without restrictions.
  • Legal Permanent Resident (LPR): If you have a green card, then you are most likely a legal permanent resident. You can obtain a green card in various ways, including through certain family members who are U.S citizens or permanent residents, through an employer, or through a visa lottery. Status of legal permanent resident can be taken away if you commit certain crimes or in other situations. As a legal permanent resident, you can legally work, you cannot vote, and you can travel outside the U.S., but not for long periods of time.
  • Undocumented: If you have no U.S. identifying documents, then you are likely undocumented, and hold no legal status. Depending on your situation, it may be possible for you to adjust status from undocumented to legal permanent resident, though you would have to consult an immigration attorney to see if you’re eligible for any form of adjustment. As an undocumented person, you cannot legally work, unless you have permission from the Department of Homeland Security, i.e. a work permit, you cannot vote, and you cannot travel outside the U.S. without being subject to a ban on the amount of time you have to remain outside the U.S. before attempting to return.

There are other specific categories of immigration status, such as special immigrant juvenile status for undocumented children in the foster care system, refugee for those who were threatened in their home countries, and temporary protected status for those who need a temporary place to stay because of a major event in their home country.

How can I change my status from undocumented to legal permanent resident?

  • First and foremost, speak to a qualified immigration attorney. Because each case is different, and there may be different ways for you to adjust status, it is best to have a lawyer evaluate your case and review your options with you, if any.
  • If an immediate family member is a US citizen or legal permanent resident, you may be able to adjust status through them. If your husband, wife, mother, father, brother, or sister is a US citizen, they may be able to file for you if all other criteria are met, though filing times differ based on the relationship, i.e. mother-daughter applications are generally faster than sister-sister applications. If your husband, wife, mother, or father is a legal permanent resident, they may also be able to file for you if all other criteria are met. If either case applies to you, immediately schedule an appointment with an attorney to see if this option is available to you.
  • If you are undocumented, Section 245(i) of the LIFE Act may help you be able to adjust status in the future.

“Section 245 of the LIFE Act allows people to become permanent residents without leaving the U.S. through a process called “adjustment of status.” Generally, people who entered the U.S. without being inspected by an INS officer, who have ever been unlawfully employed in the U.S. or who failed to always maintain lawful status in the U.S. are barred from adjusting their status in the U.S.(There are certain exceptions to the last two bars for “immediate relatives” of U.S. citizens and for certain EB applicants.)”

“Section 245(i) was first added to the law in 1994 to allow persons who qualify for green cards, but not for adjustment of status, to be able to adjust their status in the U.S. upon payment of a fine (currently $1,000). Congress phased Section 245(i) out of the law on January 14, 1998. However, people who had already qualified under the law as of that date were “grandfathered” into the benefits of Section 245(i) for the rest of their lives. The problem was that hundreds of thousands of otherwise qualified persons who missed the January 14, 1998 deadline cannot adjust status in the U.S., and cannot return to their countries to obtain green cards without being subject to either a three or a ten-year bar from returning to the U.S. These persons (You may be one of them!) have been in a state of legal limbo since 1998.”

“Congress gave a holiday present to hundreds of thousands of potential immigrants on December 15, 2000 when they extended the grandfathering date of Section 245(i) to April 30, 2001. Not only does this extend the benefits of Section 245(i) to people who had labor certifications or visa petitions (I-130, I-140 or I-360) filed on their behalf between 1998 and 2000, but it gives people over four months AFTER the passage of the law to qualify for the benefits of Section 245(i)”

To qualify for Section 245 (i): “A person with a labor certification or a visa petition filed on their behalf on or before January 14, 1998 is qualified for the benefits of Section 245(i). Under the new law, a person who has a labor certification or visa petition filed on their behalf after January 14, 1998, but on or before April 30, 2001, is also qualified for the benefits of Section 245(i) but only if they were physically present in the U.S. on the date of enactment of the new law (December 21, 2000).”

“You must have had either an employer or a relative submit a labor certification or a visa petition on your behalf by April 30, 2001. It is not necessary that the Labor Department or the INS approve your application or petition by this date, only that it be filed.”

If you are currently in foster care, you may be able to adjust status by obtaining Special Immigrant Juvenile Status. Be sure to get in contact with a social worker or lawyer with previous knowledge on SIJS to see if you are eligible. Here are some requirements to obtain SIJS:

  • You are unable to be reunited with either of your parents because of problems at home.
  • It would be out of your best interests if you were to return to your home country.
  • You are under 21 years old and are not married, though you may have children of your own. You are not emancipated.
  • If you are approved for SIJS, you cannot help your parents immigrate to the US later.
  • If you are currently living with other relatives or are adopted, you may still qualify for SIJS.

If you come from an abusive household, you may be able to adjust status under the Violence against Women Act (VAWA). Be sure to get in contact with a lawyer familiar with this act to see if you qualify. This law applies if your mother, father, husband, or wife is a US citizen or legal permanent resident, but doesn’t want to help you adjust status. If the person in question is your mother or father, you have to be under 25, and you have to have lived with the person in question at some point. The abuse does not have to be physical.

If you have been the victim of a crime, and you aided the police in investigating said crime, you may be eligible for a T visa or a U visa to adjust status. Be sure to get in contact with a lawyer as soon as possible to see if you are eligible. The T visa applies if you were a victim of human trafficking.

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Deportation and other encounters with ICE

If a person is not a US citizen, they may be deported or removed by the US government, which means they have to leave the country and have very slim chances of being allowed back in. Deportation should be avoided at all costs, and there are many reasons why a non-US citizen could be deported. Here are a few:

  • Being in the US without permission, i.e. being undocumented.

  • Alleging to be a US citizen when you are not, i.e. putting down that you are a citizen on a job application when you know you are not.
  • Marriage fraud: Marrying someone for the sole purpose of becoming a legal permanent resident, or to help them become a legal permanent resident.
  • Committing crimes such as drug possession, theft, murder, assault, etc.
  • Domestic violence
  • Illegal gun and/or weapon possession

If you receive notice that you are being removed, get in touch with an immigration lawyer IMMEDIATELY to discuss your options.

If you are detained unexpectedly, remember that you have a right to remain silent and the right to an attorney! Do not answer any questions or sign any documents put forth to you by an ICE (Immigration and Customs Enforcement) officer without first consulting a lawyer. If you do so, you may jeopardize any rights or chances you had to fight to stay in the US.

If ICE officers show up at your home, first ask to see a search warrant. If one is not shown to you, you do not have to open the door. Do not answer any questions or sign any documents put forth to you without a search warrant. Contact a lawyer immediately!!!

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Adoption

If you are adopted by US citizens or legal permanent residents, they may be able to help you adjust status. Seek legal counsel with an immigration lawyer as soon as you think you may be eligible. You first must meet all of these requirements:

  • You were adopted before your 16th birthday, or if the same family earlier adopted a brother or sister of yours, before your 18th birthday.
  • You’ve lived with your adoptive parents for at least 2 years, either before or after you were actually adopted.
  • Your adoptive parents have had legal custody of you for at least 2 years, either before or after you were actually adopted.

If either of your adoptive parents is a US citizen, the process, if you are eligible, may be much faster than if they are both legal permanent residents. The process may also be much slower if you are over 21 or are married.

Once you are adopted and are able to adjust status, you cannot help your birth parents immigrate. If you legally separate from your adoptive parents and reunite with your birth parents, and you never got your legal immigration status through your adoptive parents, then you may be able to help your birth parents immigrate. If you legally separate from your adoptive parents and reunite with your birth parents, and your adoptive parents helped you get legal status, then you may not help your birth parents immigrate.

Before heeding any advice given here or online, please schedule a consultation with a qualified immigration attorney!

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Immigration Violations

Q. Who can arrest non-citizens for suspected immigration violations?
A. A wide range of immigration officials have the power to arrest and detain non-citizens. Immigration officials can arrest a non-citizen without a warrant if they have “reason to believe that the alien … is in the United States in violation of any [immigration] kw or regulation and is likely to escape before a warrant can be obtained for his arrest.”

Q. What happens after a non-citizen is arrested on a suspected immigration law violation?
A. Upon arrest for an alleged immigration violation, a non citizen should be examined “without unnecessary delay “by an immigration officer on his or her right to enter or remain in die United States. The officer examining the individual after arrest should not be the arresting officer unless another qualifying officer is not available and taking die individual before another officer will cause unnecessary delay If the examining officer finds prima facie evidence that die person arrested has violated immigration laws, then the officer will place the non-citizen in removal proceedings or institute expedited removal, if applicable.

If ICE initiates removal proceedings, it should notify the non-citizen of the reasons for his or her arrest. The examining officer also should inform the non-citizen of the right to counsel at no expense to the government and provide a list of free legal service providers. The officer also should warn the person that any statement made “may be used against him or her in a subsequent proceeding.“

ICE may hold a non-citizen arrested without a warrant for 48 hours, or longer “in the event of emergency or other extraordinary circumstance. ” On or before the conclusion of this period ICE must determine if this individual will continue to be detained or released on bond or on his/her own recognizance. It also must decide whether to issue a Notice to Appear (NTA) and an arrest warrant.

Q. When are non-citizens entitled to be released?
A The Immigration and Nationality Act (INA) provides for the release of non-citizens arrested for immigration violations on bond or on that own recognizance except for those subject to mandatory detention due to criminal or terrorist grounds specified in the Immigration & Nationality Act (INA). The Attorney General may release non-citizens on a minimum bond of $1,500 or may grant conditional parole. However, bond or parole may be revoked at any time.

Q. How does ICE determine who should be released and under what conditions?
A The local ICE office makes the initial custody and bond determination. A long as the non citizen is not subject to mandatory detention due to criminal or terrorist grounds specified in INA, the arrested individual may be released on bond or on his or her own recognizance.
In order to he released a non-citizen “must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding. ” The factors commonly considered in making the determination to release and/or set bond include:

  1. Local family ties;
  2. Prior arrests, convictions, appearances at hearings;
  3. Membership in community organization;
  4. Manner of entry and length of time in the US.;
  5. Immoral acts or participation in subversive aerivi ties;
  6. Financial ability to post bond

Q. Can a non-citizen challenge to ICE’s custody/ bond determination?
A Yes. Subject to significant exceptions discussed in the next question and answer, after the initial custody and/or bond determination by ICE the non-citizen may apply for bond redetermination by an Immigration Judge (Ij) at any time until a removal order becomes final A request for custody or bond redetermination may be made orally in writing or by telephone, if the IJ permits in his or her discretion. If the non-citizen is detained, the request for custody/ bond redetermination should be made to the Immigration Court that has jurisdiction over the place of detention. If the non-citizen is not detained, the request should be made to the Immigration Court that has administrative control over the case or, if no court has been designated, to the Office of the Chief Immigration Judge for designation of an appropriate Immigration Court.

Q. Over what people does an IJ not have authority to review ICE’s custody and/or bond decision?
A The regulations permit an IJ from reviewing ICE’s custody and/or bond determination of the following people:

  1. Those considered to “arriving aliens”
  2. Those “described in ” the terrorism and security related ground of deportability;
  3. Those subject to mandatory detention;
  4. Those in exclusion proceedings;
  5. Those with final administrative orders of removal

Even though an IJ does not have jurisdiction to re-determine custody and/or bond for the above groups, the IJ does have jurisdiction to review whether ICE correctly determined diat a non-citizen does in fact bebng to one of diese groups.

Q. What if a non-citizen has been released from ICE custody but wants to challenge die conditions of release?
A A non-citizen who has been released from detention but is seeking to lower the bond or otherwise ease the conditions of his or her rekase, may file a request to ameliorate the terms of release with the Immigration Court within (7) seven days of release. Even if doe seven day period has expired, however, the non-citizen may nonetheless ask ICE to reconsider the conditions of release. If ICE refuses to reconsider, the non-citizen my appeal the decision directly to the BIA within 10 days of ICE’s decision.

Q. Can a non-citizen work with authorization after release from immigration custody?
A A non-citizen who is a lawful permanent resident is work-authorized incident to status, even if he/she is released from custody and is in removal proceedings. A non-citizen who is a non-LPR also may be authorized to work.

Q. Can a non-citizen request the Immigration Court to redetermine custody and/or bond even though ICE has not file a Notice to Appear with the Immigration Court?
A Yes. An IJ can conduct a bond hearing even if ICE has not filed a Notice to Appear (NTA) with the Immigration Court. This is important because ICE may delay issuing the NTA, or may issue the NTA but then delay filing it with the Immigration Court.

Q. How do bond proceedings differ from removal proceedings?
A Bond proceedings are separate from, and not part of, removal proceedings. Unlike removal proceedings, bond hearings are not usually recorded by the IJ. Also, the IJ can conduct a bond hearing even if ICE did not file a charging document. In a bond hearing the non-citizen has the burden of proof and must show that he/she does not present a danger to persons or property, is not a threat to national security, and does not pose a risk of flight. Furthermore, the IJ may consider “any information that is available to die Immigration Judge or that is presented to him or her by the alien or the Service. ” While the IJ may explain the reasons for his or her decision orally the written decision often is cursory For these reasons, notes of the bond hearing will be helpful after if there is an appeal of the IJs decision to the BlA

Q. Can a non-citizen appeal an IJs custody and/or bond redetermination?
A Either the non-citizen or ICE can appeal the IJ’s custody and/or bond determination to the BIA within 30 days of the IJ’s decision.

Q. If an IJ orders the release or lowers the bond required for release, can ICE stay that order during an appeal to the BIA?
A. An IJ’s order authorizing release may be stayed in any case where ICE had originally:

  1. Determined that the non-citizen should not be released; or
  2. Set a bond of $ 1 0,000 or more.

In order for the automatic stay to kick in, however, ICE must file an EOIR-43 Nonce of Service Intent to Appeal Custody Determination within one day of the IR’s order. Some have found the automatic stay provision unconstitutional as applied in cases before them.

Even if the IJ’s order is not automatically stayed, the BIA may stay the IJ’s order pending the outcome of ICE’s appeal, if ICE requests the Board to stay the IJ’s order when ICE appeals. ICE can request an emergency stay from the Board at any time.

Courtesy: American Immigration Law Foundation (AILF), Practice Advisory, July 2008.

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Detention and Deportation resources:

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The Anti-Immigrant Movement

http://www.youtube.com/watch?v=qpiq1nAK4a0&feature=channel_page

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