If an individual does not have a green card, and either overstayed an I-94 period of authorized admission or entered illegally and cannot adjust status in the US, there is still an opportunity through cancellation of removal to stay in the US and obtain the status of a lawful permanent resident and obtain a green card.
Cancellation of removal usually a defensive maneuver occurring after a person has been put into removal proceedings. In other words, a Notice to Appear has been issued demanding the appearance before an Immigration Judge. Basically, if the foreign national, who is now a “respondent” in court, may ask for relief from the court in the form of a cancellation of removal application.
However, there are two types of cancellation of removal applications with different requirements for eligibility. One is for cancellation of removal for permanent residents; the other is for non-permanent resident. Non permanent residents facing deportation / removal must establish 10 years of continuous physical presence in the United States, good moral character, and demonstrate that removal would result in an exceptional and extremely unusual hardship to a “qualifying relative.” The “qualifying relative” must be a citizen or lawful permanent resident of the United States and could be his parent, spouse, or child under 21 years of age.
Cancellation of Removal for Non-Permanent Residents – Example
An example would be someone who overstays a tourist or B2 visa. Even though the visa may be for a ten year period of time, the I-94 actually controls the period of time the visitor may stay in the US during any given visit. This period is normally six months, but may be shorter. In some instances, a visitor may unintentionally overstay simply because the difference between the I-94 and the actual visa is misunderstood.
If a person overstays long enough, in this instance ten years, then the law provides a waiver or excuse as long as the cancellation of removal requirements mentioned above can be met i.e., good moral character, and removal would result in an exceptional and extremely unusual hardship to a parent, spouse or child under the age of 21 years.
Cancellation of Removal for Non-Permanent Residents – Requirements
The ten years must be “continuous”. The ten year period is not considered broken in the event the person is in the United States for several years and then returns home, only to return illegally at a later date if the absence was not for more than 90 days, or 180 days in the aggregate.
Qualifying relatives include parents, a spouse or child under 21. Problems can result when a birth certificate does not list the name of the father, or if the respondent is living with a “baby mama” or “baby daddy”, but a legal marriage has not taken place. It may be possible in each of these cases to cure the problem by having a new birth certificate issued or by marriage.
Exceptional and extremely unusual hardship to the qualifying relative must be demonstrated. This is a high standard to meet, and although it does not mean that the hardship has to reach a level of being unconscionable, it is more than the type of hardship which would normally occur when someone is deported from the United States. Medical issues, ties to the community, the number of relatives in the US with legal status versus relatives in the foreign national’s home country, payment of income taxes and child support, and employment history are just a few of the factors a judge may consider in their decision to grant or deny cancellation of removal.
Good moral character standard must be met. While it may be argued that a person who broke the laws of this country by entering without inspection should not be deemed to be a person of good moral character, the law is not written with this in mind. Generally, if no serious crimes have been committed, and a person has ties to the community such as membership in religious, fraternal or community organizations, and submits good moral character letters, then the Immigration Judge may find good moral character – and grant cancellation of removal.
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