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Your Questions (F.A.Q.)

IMMIGRATION LAW:

What is the difference between an Asylum and a Refugee Status?

Asylum seekers and refugees can both gain legal residency status in the United States if they fulfill certain requirements under immigration law. The main differences between the two forms of relief are:
  • Asylum seekers are already on U.S. soil, while refugees are outside the United States; and
  • Refugees seek help from the United Nations, while asylum applicants submit their petition to the U.S. government.
Although federal law and regulations govern the asylum and refugee process, each request is determined on a case-by-case basis, meaning that an individual’s application as presented to an immigration law officer is the most crucial factor in obtaining the relief sought be it either asylum or refugee status. Red below for a discussion of asylum and refugee status under immigration law.

Who is eligible for Asylum?

Asylum is a type of protection that allows individuals who are already in the United States to remain here. In order to obtain asylum, an applicant must demonstrate to the United States government that he or she fears persecution in their native country based upon one or more of the following:
  • Race,
  • Religion,
  • Nationality,
  • Membership in a social group, or
  • Political opinion.
An individual seeking asylum applies directly to the United States government. U.S. law generally requires that an application for asylum be filed within one year of the person’s arrival in the United States, although there are very limited exceptions. The procedure and evidence that is required in an asylum application is significantly more complex than for individuals seeking refugee status before the U.N. In addition, there is a danger that the applicant will be held in detention while his request is considered if he or her entered the United States illegally. Finally, asylum applicants cannot apply for an employment authorization at the same time as they apply for asylum. They need to wait for a 150 days before applying.

What happens if USCIS does not grant my asylum?

After an asylum interview, there are four possible outcomes:
  • First, your application for asylum may be granted.
  • Second, your application may be rejected because it was not filed within one year after you arrived in the United States and there are no exceptional circumstances to justify your failure to file it within one year.
  • Third, if you do not have a valid immigration status at the time for your interview, the USCIS will most likely send your case to an Immigration Court. This action is called referring the case for a hearing in front of an Immigration Judge.
  • Fourth, if you do have a valid immigration status at the time of your asylum interview (such as student, or Temporary Protected Status), the USCIS will send you a “Notice of Intent to Deny” explaining that they intend to deny your application. If they do deny your applicaton, nothing further will happen until your valid immigration status ends. When that happens, the USCIS can send your case to an Immigration Court.

My asylum application was sent to an Immigration Court.
What happens now?

If the USCIS does not grant your asylum application, they will most likely send your case to an Immigration Court, so that a Judge can rule on your case. In this situation, the immigration services will start what is called removal proceedings against you. This means that the USCIS is saying that you do not have the right to be in the US, and that they want to deport you. You will have the right to apply for asylum again in front of the Immigration Judge. In the Immigration Court you will have the right to explain your whole case again to the Judge. You are strongly advised to consult with an experienced immigration attorney if you are put into removal proceedings.

What is Naturalization?

Naturalization is the process, whereby a United States citizenship is conferred on a foreign national after he or she fulfills the requirements established by Congress in the Immigration and Naturalization Act (INA). The general requirements for administrative naturalization include:
  • A period of continuous residence and physical presence in the United States
  • Residence in a particular state prior to filing
  • An ability to read, write, and speak English
  • Knowledge and understanding of the United States history and government
  • Good Moral Character
  • Attachment to the principles set forth in the United States Constitution
  • Favorable disposition toward the United States.
All naturalization applicants must demonstrate good moral character and a favorable disposition toward the United States. The other naturalization requirements may be modified or waived for certain applicants, such as spouses of United States citizens and persons with mental or physical disabilities.

What is a VAWA self-petition?

Immigrants married to US citizens or permanent residents who subject them to domestic violence may petition for permanent residence on their own, without the involvement of the abusive US citizen or permanent resident spouse. These petitions are known as VAWA petitions, after the Violence Against Women Act, which introduced these applications. Instead of submitting an I-130 relative petition along with the abuser, the battered spouse will become eligible to file an I-485 application for adjustment of status to permanent resident. Self-petitioners married to lawful permanent residents will have to wait until there is a visa number for them (just like in family preference cases). Self-petitioners married to US citizens will be immediately eligible to file an I-485 application for adjustment of status to permanent resident.

What is a green card?

"Green Card" is a term often used to refer to lawful permanent residence in the United States. Lawful permanent residents have the right to live and work indefinitely in the United States, as well as to petition for certain family members to get green cards. Lawful permanent residence is also the first step towards becoming a citizen of the US("naturalizing"). There are a number of different ways to become a lawful permanent resident of the US, including through a family member, through an employer, by being granted an asylum or a refugee status, or through the diversity visa lottery.

How do I get a green card?

There are five major ways to get lawful permanent residence in the United States:
  1. through a family member;
  2. through an employer;
  3. through the diversity visa lottery;
  4. by being granted asylum;
  5. by entering the US as a refugee.

What is adjustment of status?

Adjustment of status is the process by which a person inside the United States becomes a lawful permanent resident. The person’s immigration status is “adjusted” to that of a lawful permanent resident.

What is the difference between change of status and adjustment of status?

Change of status refers to the process of changing from one nonimmigrant status to another, such as from a student to a temporary worker. Adjustment of status refers to the process of becoming a lawful permanent resident of the US.

Are affidavits of support required for all adjustment of status applications?

No. The I-864 enforceable affidavit of support is required only in family petition and some employments-based cases. Affidavits of support are not required for refugee or asylees, nor for VAWA self petitioners.

MATRIMONIAL AND FAMILY LAW:
PRE-NUPTIAL/POST-NAPTIAL AGREEMENTS

A Pre-Nuptial Agreement is an agreement made prior to the marriage concerning property, financial issues or children.
A Post-Nuptial Agreement is an agreement made after the marriage concerning property, financial issues or children.

In order to be valid, these agreements must be fair and include the full disclosure of the assets and debts of both parties. Each party should be represented by his/her own separate attorney. If an attorney did not represent one of the parties, that party may be able to later void the agreement by claiming to not have understood what he/she was signing. Pre-nuptial and post-nuptial agreements, that have been properly pepared, reviewed and executed by the independent attorneys of both parties and contain certain language, are found enforceable by the courts.

WHAT ARE THE BASIC REQUIREMENTS TO FILE FOR A DIVORCE IN NEW YORK STATE?

There are two basic requirements that must be met before filing for divorce in New York State:
  1. The residency requirements are as follows:
    1. The marriage ceremony was performed in New York State and either spouse resided as a resident in New York State for at least one year prior to their divorce action.
    2. The couple lived as husband and wife in New York State and either spouse is a resident of the state wherein he/she resided for at least one year prior to their divorce action.
    3. The grounds (see explanation below) for divorce occurred in New York State and either spouse is a resident of the state and resided in New York State for a continuous period of one year immediately before their divorce action began.
    4. The grounds for divorce occurred in New York and both spouses are New York residents at the time the action is commenced.
    5. If you and your spouse were married outside New York State and you never lived as husband and wife in this state and the grounds (see explanation below) for divorce not occur in this state, therefore either you or your spouse must presently be a resident of New York State and have resided in New York State continuously for at least two years.
  2. The Grounds requirements are as follows:
    1. Cruel and Inhuman Treatment - must rise to the level that the physical or mental well-being of the person who wants to file for divorce is endangered, and it is unsafe or improper for him/her to continue living with his/her spouse.
    2. Abandonment - there are three types of abandonment:
      • First is physical abandonment, which means that one of the spouses has physically departed from his/her marital home for a period of one year or longer prior to their divorce action and until the present.
      • Second is constructive abandonment which involves one spouse's refusal to engage in sexual relations with the other spouse without consent, cause or justification, continuously, for a period of one year or longer prior to commencing the action and continuing to the present.
      • Third is lock out, which involves one spouse’s refusal to allow the other spouse into the home continuously for more than one year prior to commencing the action and continuing to the present.
    3. Imprisonment – may be maintained when the Defendant has been imprisoned for a period of at least three consecutive years. The imprisonment must have commenced after the date of the marriage and the Defendant must still be in prison when this divorce action is commenced. Time limit to start this action is five years beginning from the time of the completion of the third year in prison.
    4. Adultery - an act of a sexual or a deviant sexual intercourse voluntarily performed by the Defendant with a person other than his or her spouse during the course of marriage. (Cannot be based only on the Defendant’s or Plaintiff’s testimony, evidentiary requirements must be satisfied. In some case can be maintained as grounds for Cruel and Inhuman treatment).
    5. Conversion of a Separation Agreement - if you and your spouse have lived apart for more than one year pursuant to a properly executed separation agreement, you may commence an action for divorce.