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Work Authorization and Green Card Through Cancellation of Removal
Attorney Robert L. Reeves, Jan 20, 2013
For many, the re-election of President Obama is viewed as a sign that comprehensive immigration reform will soon become a reality. However, comprehensive immigration reform might not be as near as some believe. The President’s opposition party – the Republicans – remain in control of the United States House of Representatives. And it remains that comprehensive immigration reform would have to be approved by the House of Representatives, and thus be supported by at least some Republicans. For some time, the Republicans have made increased border security a prerequisite to comprehensive immigration reform. To date, many Republicans claim that this demand has not been met. Further, many Republicans have expressed concerns about granting work permits to prospectively millions of individuals at a time when the unemployment rate in the United States remain high. As such, comprehensive immigration reform may not soon become a reality. For those who have waited patiently for such reform, now is an ideal time to consider other options for legalizing their status in the United States. One such option, which is not known to many, is an application for cancellation of removal.
Considered a “hidden gem,” cancellation of removal is an excellent pathway by which many individuals can acquire a green card who may not otherwise qualify to immigrate to the United States. One of the reasons that cancellation of removal is not known to many seeking lawful permanent residence is that such an application can only be submitted to an immigration judge. As a result, information about applying for cancellation of removal is not readily posted on the United States Citizenship and Immigration Services website – a source for many who seek information on how to immigrate to the United States. Nevertheless, thousands of individuals every year obtain lawful permanent residence through an application for cancellation of removal.
In order to obtain lawful permanent residence through cancellation of removal, an applicant must meet four requirements. First, the applicant must be physically present in the United States for a period of ten years immediately preceding the submission of his or her application. Second, the applicant must be a person of good moral character during the ten years immediately preceding his or her application. Third, the applicant must establish that he or she has not been convicted of a serious crime. A felony conviction will disqualify an individual from applying for cancellation of removal. Some misdemeanor convictions will also disqualify an individual, while others will not. And fourth, the applicant must establish that his or her spouse, parent, or child who is a citizen or lawful permanent resident of the United States will suffer “exceptional and extremely unusual hardship” if he or she is not granted lawful permanent residence.
Every application for cancellation of removal is unique. Some applications are stronger than others. The strength of each application most often rests in the hardship which will be suffered by the qualifying relative or relatives – the spouse, parent, or child of the applicant who is a citizen or lawful permanent resident of the United States. In determining the degree of hardship to a qualifying relative includes financial, emotional, and psychological hardship. Therefore, strong applications often include a substantial financial, emotional, or psychological tie to the qualifying relative or relatives. For instance, a qualifying relative parent who is completely dependent upon the applicant for financial and emotional support presents a strong case. Another strong case would be an applicant who has a qualifying relative with a serious medical ailment or mental disability which requires attention and support from the applicant. As for a qualifying relative who is a child, consideration is always given to the child’s age. The older the children who are qualifying relatives, the stronger the application will be. For instance, an applicant with a healthy 16 year-old qualifying child will have a much stronger case than an applicant with a healthy 10 year-old qualifying child. It is assumed that the older the child, the more hardship that qualifying relative will suffer if the application is not granted. Another strong applicant would have a qualifying relative who is a child of any age with special needs in school – for instance, a child who is exceptionally gifted or a child with a severe learning disability. Also, another strong case would be a single parent who is solely responsible for raising his or her qualifying relative child or children. One can quickly see why each application for cancellation of removal is unique, and why each application must be evaluated on a case-by-case basis to determine its strength and likelihood of success.
Some individuals struggle with the decision to apply for cancellation of removal. The most significant and immediate benefit of applying for cancellation of removal is the ability to obtain a work permit. As soon as the application is submitted, the applicant can apply for a work permit. For some potential applicants, the ability to obtain a work permit within a matter of months is a strong factor in their decision to apply for cancellation of removal. Other potential applicants are concerned about pursuing cancellation of removal because it requires appearing before an immigration judge. However, in most instances, this concern is unfounded. Many applicants who ultimately cannot present a strong application have their cases closed by the immigration judge. Thus, while not receiving a green card, these applicants are nevertheless allowed to remain and work in the United States! Such an outcome, while falling short of a green card, still places the applicant in a better position than he or she was in prior to making the application for cancellation of removal.
Unfortunately, comprehensive immigration reform may not soon become a reality. For many individuals who have patiently waited for reform, another avenue of obtaining lawful permanent residence may exist – cancellation of removal. An experienced and knowledgeable immigration attorney can meet with an individual to assess the strength of a potential application for cancellation of removal, and represent an applicant during all phases of the application process to include appearing with the applicant before the immigration judge. For those who can present strong applications for cancellation of removal, your wait to obtain lawful permanent residence in the United States can end now.
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Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.
Robert L. Reeves is a licensed California attorney and is certified by the California State Bar as an Immigration and Nationality Law Specialist. He has been specializing in immigration law for over 30 years and is admitted to practice before the US Supreme Court, the US Court of Appeals for the Ninth Circuit, several US District Courts and California State Courts. He is the Managing Partner of Reeves & Associates with offices located in Pasadena, San Francisco, Las Vegas and Makati City – Unit 507 Tower One Ayala Triangle, also known as the Philippine Stock Exchange Plaza Makati , 6767 Ayala Avenue, Makati City, Philippines 1226 (corner Paseo de Roxas, beside Ninoy Aquino Monument). Philippine Contact Numbers: 759-6777 or Toll Free: 1-800-10-773-3837E-mail: immigration@rreeves.com Website: www.rreeves.com
