Green Card After Removal Order

Posted on March 12, 2006 by Warren Wen | Category: Immigration

Green Card after Removal Order

Mr. Wang asked:

I was detained by the USCIS for 30 days when I entered into the United States without an inspection in December 1999.  After I paid $10,000 bail, they released me. But, they asked me to appear at a court in California in March 2000. I left California, and never went to the court.  As a result, I was ordered removed by the immigration court in March.  On April 28, 2001, the owner of the restaurant in New York where I was employed applied a labor certificate for me. While my labor certificated was being processed, I had a fight with my boss and had moved to Atlanta. Since then, I have been working as a chef in a Chinese restaurant. The owner is pleased with my work, and he is willing to apply for a labor certificate for me. Now my questions are:

  1. Could I still apply for a labor certificate even if I am an illegal immigrant?
  2. Instead of returning to China, could I apply for the green card in the United States without leaving the country if my new labor certificate is approved?
  3. Is it a true about the hearsay that the person cannot apply for the green card once he was ordered removed?

Answer:

This is a very important issue which Mr. Wang asked.  Recently, our law firm has received many phone calls with similar questions as Mr. Wang’s. Unfortunately, much of the information Mr. Wang got from other sources seem incorrect.

Although Mr. Wang has lost his legal status, he may still apply for a labor certificate. What do we mean by the Labor Certificate Application? It is the first step of the three to apply for the Employment-based immigration for the foreigners. To apply for a labor certificate, a U.S. employer should submit an application to the U.S. Labor Department. After the labor certificate is approved, in general, the foreigner is allowed to take the next step and submit I-140 petition and I-485, the green card application.  Whether the alien has lost the legal status or not does not affect the foreigner’s eligibility in applying for the labor certificate. In other words, Mr. Wang can still apply for the labor certificate in the US regardless of his illegal status.

If Mr. Wang had the new labor certificate approved, he could apply for the green card in the U.S. without returning to China.  In general, the employer can submit I-140 petition for the alien to the USCIS after the labor certificate was approved by the labor department, if the foreigner has kept his or her legal status in the U.S.  Once I-140 petition is approved, however, the foreigner may have to wait for the quota before he or she could submit the I-485 green card application.  When the quota is available, he or she could finally have his or her status changed to a lawful permanent resident.  Usually, a foreigner cannot apply for the green card if he lost his legal status.  But in Mr. Wang‘s case, he could be grandfathered under Section 245(i)* since he had submitted the application for his old labor certificate on April 28, 2001, which was before April 30, 2001.  Under Section 245(i), Mr. Wang is allowed to pay the penalty fees, and apply for the green card within the U.S. as long as his old labor certificate was approvable when filed. Even if his old labor certificate was not approved, and he changed his job, he could still be grandfathered under Section 245(i). In fact, it would be impossible for Mr. Wang to leave the U.S. and return to China to apply for the green card.  Because of the immigration law, anyone who stayed illegally in the U.S. for a half year or more cannot re-enter the U.S. within 3 years.  If the person overstayed in the U.S for one or more years, he would not be allowed to re-enter into the U.S. for the next 10 years. Since Mr. Wang illegally stayed in the U.S. for more than a year, once he left he would not be allowed to re-enter the U.S. for the next 10 years.

Although Mr. Wang was once ordered removed in 2000, he is still able to adjust the status in the U.S. Generally, such a case is very difficult to deal with once the foreigner had been ordered removed in the immigration court. But we may still be able to do something about it. In some situations, the foreigners could move to reopen the case, or request a waiver from the USCIS. The key point here is that Mr. Wang should find a qualified and experienced lawyer who has dealt with many complicated cases in the immigration court as such, so that he could get a suitable help.  He should NOT just find somebody from a travel agency or an immigration agency that are not licensed to practice law to help him in order to save some money and time.

Recently, I have helped some clients who have tried to adjust their status through one of those agencies in New York and California. The clients have been devastated, because the agent did not do much to help them even after they had paid the money. When these upset clients asked for a copy of their documents, the agents refused to provide any. In extreme cases, some clients have been investigated by the USCIS because these agencies were shut down by the USCIS for illegal activities and the clients’ files were found in those agencies.  They were very regretful, and Mr. Wang may be, too.

 

*Generally, persons 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 “immediate relatives” of U.S. citizens and for certain EB applicants.) However, the immigration law under Section 245i allows persons who qualify for green cards, but not for adjustment of status, to be able to adjust their status in the U.S. without leaving the U.S. upon payment of a fine (currently $1,000).

This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.