Generally, the Proclamation suspends and limits the entry of individuals who are not United States citizens or lawful permanent residents into the United States. Importantly, however, the Proclamation only applies to individuals who: (1) are outside the United States on April 23, 2020; (2) do not have an immigrant visa that is valid on April 23, 2020; and (3) do not have an official travel document other than a visa (i.e., an advance parole document, re-entry permit, or other official travel document) that is valid on April 23, 2020, or issued on any date after April 23, 2020, and permits the individual to travel to the United States and seek entry or admission.

Moreover, the general suspension and limitation on entry contained in the Proclamation has several exceptions and does not apply to several categories of individuals. Individuals falling within any of these exceptions will not be denied entry into the United States as immigrants due to the Proclamation. Specifically, the Proclamation does not apply to individuals falling into any of the following categories: (1) any lawful permanent resident of the United States; (2) any individual seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional, or to perform work essential to combating or recovering from the COVID-19 outbreak (including any spouse and unmarried children under 21 years old of any such individual(s)); (3) any individual applying for an EB-5 Investor Visa; (4) any individual who is the spouse of a United States citizen; (5) any individual who is a child of a United States citizen and under the age of 21; and (6) any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces. In addition, the Proclamation contains exceptions for certain individuals designated by the Secretary of State or the Secretary of Homeland Security as being important to the furtherance of certain law enforcement objectives or whose entry would be in the national interest.

As a result, individuals who are already inside the United States and who are seeking to apply for lawful permanent residency should still be able to obtain a green card even with the new restrictions imposed by the Proclamation. Furthermore, the Proclamation authorizes consular officers to determine whether the restrictions contained in the Proclamation apply to any particular individual seeking entry into the United States as an immigrant. If a consular officer determines that the restrictions within the Proclamation do not apply to a particular individual, then that individual can still be admitted to the United States as an immigrant.

Additionally, the Proclamation does not apply to individuals seeking entry to the United States as nonimmigrants (i.e., individuals admitted to the United States for a specific, temporary period of time). Therefore, seasonal workers, tourists, and other individuals seeking entry into the United States on a temporary basis are not impacted by the Proclamation.

While the full extent of the legal impact of the Proclamation remains unclear, and court challenges to the Proclamation’s enforcement are possible, the Proclamation is currently set to expire by its own terms on June 23, 2020. It is possible that the Proclamation could be extended beyond June 23, 2020, (or extended in a modified form), and the Proclamation directs the Secretary of Homeland Security, in consultation with the Secretary of State and the Secretary of Labor, to provide a recommendation to the President no later than June 13, 2020, as to whether the Proclamation should be modified or extended.

If you think the Proclamation may impact you or a loved one, you should seek the legal advice of a knowledgeable immigration attorney immediately. During these uncertain times, it is more important than ever to seek the assistance of a professional and learn what your options are in the ever-changing world of Immigration Law. Contact a Nashville immigration attorney with Cole Law Group at 615-490-6020 to schedule a consultation and learn about whether you could be eligible for a green card.

ABOUT THE AUTHOR: Andy Goldstein

Andy Goldstein is an Associate Attorney and leads our Immigration Law team at Cole Law Group. He is a graduate of Belmont University College of Law and is admitted to practice in Tennessee state courts, the United States Court of Appeals for the Sixth Circuit, and the Immigration Courts of the Executive Office for Immigration Review (EOIR). Andy focuses his practice in the areas of Immigration Law and Family Law. Cole Law Group clients benefit from Andy’s passion for the law and dedication to serving them well.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

The United States immigration system contains millions of pending applications at any given time. Although many immigrants throughout the United States ultimately submit their applications to obtain lawful permanent residence (i.e., a “Green Card”) or other immigration benefits to the U.S. Citizenship and Immigration Services (“USCIS”), the Immigration Courts located in the Executive Office for Immigration Review (an office within the U.S. Department of Justice) present a very different, surprising, and far riskier path to lawful permanent residence: removal proceedings.

Without a doubt, being placed in removal proceedings and facing deportation from the United States is probably one of the greatest fears of any immigrant in the United States. If the Government succeeds in its case against an immigrant in removal proceedings, the Immigration Court will order the immigrant removed from the United States and, with only few exceptions, the immigrant will be transported back to their native country. Immigrants placed in removal proceedings because of criminal charges brought against them in the United States may even be placed in federal custody and detained for the duration of their removal proceedings, rendering it difficult or impossible for them to re-connect with their loved ones while their removal proceedings are ongoing, and their ability to secure legal counsel and obtain the necessary evidence to support their defense may be substantially impaired. Indeed, for nearly all immigrants currently residing in the United States – lawfully or otherwise – the possibility of being placed in removal proceedings is a scenario that cannot be described as anything other than truly horrifying and disastrous, as their removal from the United States will mean separation from their families, an end to the life they have built for themselves over a period of months or years, and a return to dangerous or unhealthy living conditions in the country they hoped to flee, leave behind forever, or never return to.

As difficult as the removal process is for countless immigrants, the current legal landscape does provide a little-known silver lining to the removal process: certain immigrants can acquire lawful permanent residence status and a Green Card by obtaining a form of relief known as cancellation of removal in a removal proceeding. Indeed, in certain circumstances, not only can immigrants prevail in their removal proceeding and avoid deportation from the United States – they can actually obtain a Green Card at the conclusion of the proceeding and be admitted to stay in the United States permanently when there would have otherwise been no other avenue available to obtain a Green Card.

The primary way an immigrant can obtain lawful permanent residence through a removal proceeding is through a process known as cancellation of removal. There are two (2) types of cancellation of removal: (1) cancellation for lawful permanent residents; and (2) cancellation for nonpermanent residents (i.e., non-Green Card holders). See 8 U.S.C. § 1229b(a)-(b). If you already have a Green Card and are placed in removal proceedings, you can avoid deportation if you have: (1) resided in the United States continuously for seven (7) years after lawful admission; (2) been a lawful permanent resident for at least five (5) years; and (3) not been convicted of any “aggravated felony.” See 8 U.S.C. § 1229b(a). On the other hand, even if you do not have a legal immigration status, do not have a Green Card, and did not lawfully enter the United States, you can still avoid deportation from the United States and obtain a Green Card through cancellation of removal if you: (1) have been continuously physically present in the United States for the previous ten (10) years; (2) have had “good moral character” for the previous ten (10) years; (3) have not been convicted of certain criminal offenses listed by federal law; and (4) establish that your removal would result in exceptional and extremely unusual hardship to your spouse, parent, or child, who is a citizen of the United States or a lawful permanent resident (i.e., Green Card holder). See 8 U.S.C. § 1229b(b). Although immigrants in removal proceedings may also be able to avoid deportation through a process commonly known as “defensive asylum,” the avenues of relief available through asylum are not discussed in this article.

Federal law only allows 4,000 nonpermanent residents to be granted cancellation of removal per year. See 8 U.S.C. § 1229b(e). This generally means that even if a nonpermanent resident immigrant obtains cancellation of removal after the annual statutory cap has been met, they will nevertheless not be deported from the United States and will generally be released back into American society until the application can be approved (even if it takes several years). Cancellation of removal for nonpermanent residents (previously referred to as “suspension of deportation” under 8 U.S.C. § 1254) allows certain immigrants who are not lawful permanent residents but who have lived in the United States for an extended period of time a unique and unlikely avenue to obtaining a Green Card. Indeed, for some immigrants who unlawfully entered the United States and have resided here for decades or more, cancellation of removal is the only mechanism by which they can obtain a Green Card.

Nevertheless, cancellation of removal is far from an ideal pathway to lawful permanent residence. Immigrants can only apply for cancellation of removal when they are placed in removal proceedings. The risk of failure is dire, as failing to successfully defend a charge of removability is extremely likely to result in deportation. Even if cancellation of removal is the only avenue of relief available to you, it is still usually not recommended that you attempt to use cancellation of removal to obtain a Green Card unless there is absolutely no other option. Even then, it is strongly recommended that you obtain the advice of a knowledgeable immigration attorney before ever attempting to acquire cancellation of removal, as it is a difficult form of relief to obtain, and the possible benefit of obtaining a Green Card is usually not worth risking separation from loved ones and an end to years of hard work spent developing a life in the United States. However, when immigrants are confronted with the challenge of a removal proceeding for unrelated reasons, with the assistance of a skillful immigration attorney and the proper evidence, cancellation of removal could result in not only overcoming many otherwise insurmountable legal obstacles found in the immigration laws, but also in obtaining a Green Card and a new life of safety, security, and peace of mind never before thought possible. 

ABOUT THE AUTHOR: Andy Goldstein

Andy Goldstein is an Associate Attorney and leads our Immigration Law team at Cole Law Group. He is a graduate of Belmont University College of Law and is admitted to practice in Tennessee state courts, the United States Court of Appeals for the Sixth Circuit, and the Immigration Courts of the Executive Office for Immigration Review (EOIR). Andy focuses his practice in the areas of Immigration Law and Family Law. Cole Law Group clients benefit from Andy’s passion for the law and dedication to serving them well.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

Throughout America, one of the greatest struggles facing millions of immigrants is that of obtaining lawful permanent residence or – as it is commonly called – a “Green Card.” There are dozens of possible paths to obtaining a Green Card. Even many undocumented immigrants have a pathway to legal permanent residence available to them. Part 2 of this series focuses on family-based immigration and some of the ways immigrants can seek a Green Card through family relationships they have with relatives who are U.S. citizens or legal permanent residents. If you missed Part 1 of this series (an overview to obtaining a Green Card), you can find it here.

Currently, family-based immigration results in greater numbers of admissions than the other categories of immigrants. As specified in the Immigration and Nationality Act, eligibility for family-sponsored immigration is determined by an immigrant’s familial relationships to U.S. citizens or legal permanent residents. See 8 U.S.C. §§ 1151, 1153. If an immigrant can be categorized as an “immediate relative” of a U.S. citizen, he or she may be exempt from the waiting times that apply to other categories in family-based immigration. However, immigrants seeking to obtain lawful permanent resident status through their marriage to a U.S. citizen may also be subject to heightened scrutiny and evidentiary requirements. Determining your eligibility for a family-based immigration category, as well as which category is best for you, is a complex process that should not be attempted without the assistance of an immigration attorney.

Generally, the process of obtaining a Green Card in family-based immigration starts with the filing of a visa petition by the immigrant’s relative in the U.S. Visa petitions are generally filed with the United States Citizenship and Immigration Services (“USCIS”), an agency within the Department of Homeland Security. Generally, a USCIS Officer will be responsible for adjudicating the visa petition. Approving a family-based visa petition can be discretionary for a USCIS Officer. Therefore, it is crucial to complete the visa petition in the legally correct manner and with sufficient supporting evidence to prove the bona fide nature of the family relationship. To gather the necessary evidence and complete the visa petition properly, it is important to secure the legal counsel of an immigration lawyer before submitting a visa petition to USCIS or any other government agency.

If USCIS approves the visa petition, the next step depends on the location of the immigrant. Those outside the U.S. generally must go through consular processing at a U.S. Consulate in their native country, while those inside the U.S. may be able to stay inside the U.S. and obtain their Green Card through a process known as adjustment of status. Some qualifying immigrants already inside the U.S. may have to leave the U.S., go to the U.S. Consulate in their native country, and return to the U.S. after consular processing.

Under American Immigration Law, the primary family-based immigration categories are: (1) spouses, children, and parents of certain adult U.S. citizens; (2) unmarried children of certain U.S. citizens; (3) spouses and certain children of legal permanent residents; (4) certain children of legal permanent residents; (5) certain married children of U.S. citizens; and (6) siblings of U.S. citizens. See 8 U.S.C. § 1153(a). Adopted children of U.S. citizens and legal permanent residents may be eligible in some cases. All but one of the above categories are subject to statutory annual limits on the number of visas which may be issued. Depending on the applying immigrant’s category, he or she may have a waiting period before an immigrant visa number becomes available. Other factors, including prior criminal history or previous length of time in the U.S., can impact eligibility.

Nevertheless, determining your categorical eligibility is an intricate and legally complex analysis. In some cases, the denial of a visa petition could result in the immigrant being placed in removal proceedings and facing the possibility of deportation. It is strongly recommended that you consult with an immigration attorney to determine your eligibility and file your visa petition properly. Call Cole Law Group’s Nashville immigration attorneys at 615-490-6020 to schedule a consultation and determine what type of visa petition is best for you to obtain a Green Card and obtain lawful permanent residence.

The “Green Card” – to some, it is a symbol of hope, accomplishment, and security for a new life in America. To others, it symbolizes peace of mind, enduring stability with loved ones, and extinguishing the fear of deportation. Regardless of background or viewpoint, obtaining a Green Card means successfully completing the path to legal permanent residence. While millions of immigrants throughout the United States want a Green Card, relatively few of those immigrants ultimately succeed in acquiring one. For a variety of reasons, many immigrants find obtaining a Green Card challenging and difficult. This series of posts – while far from comprehensive or a substitute for legal counsel – discusses some of the ways immigrants in the United States can obtain status as a lawful permanent resident.

In the legal sense, acquiring lawful permanent resident status is the same thing as obtaining a Green Card. Upon receiving lawful permanent resident status, the immigrant is given an identification card. Over time, people began referring to these identification cards as “Green Cards” due to the green backdrop on the cards. Thus, while many people consider the Green Card to be the key to legal status, the card itself is really nothing more than a piece of plastic – the true prize is obtaining the status of lawful permanent resident.

But how can you get status as a lawful permanent resident? It depends. Every case is different, and there are dozens of possibilities. The current immigration system utilizes four (4) main categories of immigrants: (1) family-sponsored immigrants; (2) employment-based immigrants; (3) diversity immigrants; and (4) humanitarian immigrants. Within each category there can be several additional sub-categories, all with differing eligibility requirements. In addition, many of those categories have numerical limits on the number of visas that can be issued each year, resulting in various wait times. Therefore, it is not uncommon for many immigrants to be eligible to apply for legal permanent residence but have a waiting period before they can actually complete the process and obtain their Green Card. Even outside of these four (4) main categories, there are several other possible paths to receiving lawful permanent resident status. Indeed, even immigrants currently in removal proceedings and facing deportation may be able to obtain a Green Card and adjust their status to that of a lawful permanent resident.

Criminal history can be another major factor affecting which paths are available to you in obtaining lawful permanent resident status and acquiring a Green Card. Determining whether particular crimes will change your eligibility to obtain a Green Card can be an extremely complicated process and should not be attempted without the assistance of an immigration lawyer. This analysis can also be impacted by the total number of criminal offenses, how long ago the criminal offense occurred, where the criminal offense occurred, the ultimate disposition of each offense, and many other factors which must be considered on a case-by-case basis. In some cases, immigrants can overcome past criminal offenses by presenting sufficient evidence and an adequate explanation. If you want to become a legal permanent resident but do not know how a criminal incident from your past affects your options, it is highly recommended that you seek the advice of an immigration attorney.

Even if you doubt your ability to apply for status as a lawful permanent resident, don’t give up hope. Many immigrants have several paths to permanent residence, and many more are surprised to learn of the paths available to them. As the remaining parts of this series will discuss, the path towards peace of mind and lifelong stability may very well be within your grasp. If you are interested in learning more about your potential path(s) to legal permanent residence, call Cole Law Group today at 615-490-6020 to schedule a consultation with one of our Nashville immigration attorneys.