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1. I am an immigrant in the United States who entered with a student visa. A friend of mine asked me if I am in status.  I answered “Yes. I have a visa.” Then I started thinking – are the words “Visa” and “In Status” synonym?
2. No. ” In status” is typically reflected in the visa, but “visa and in status” are two vastly different things.

When someone wishes to come to the U.S. temporarily (whether for a number of weeks as in the case of a tourist, an international student or a number of years as in the case of an H-1B worker), he or she must obtain a “visa” to enter the U.S. When admitted into the country -at an air, land or sea port, also referred to as port of entry- the individual obtains a status.

Let’s take the example of an international student. Before the student arrives in to the United States, she must apply for a visa at the U.S. embassy abroad. She submits the applications and the supporting documents. Once the visa application is approved, the student receives her visa. The “visa” is the adhesive label covering one entire page of the passport. This is often referred as the “visa stamp.”

Each “visa” has its own classification. Every “visa classification” has a set of requirements that the visa holder must follow and maintain. Those who follow the requirements maintain their status and ensue their ability to remain in the United States. Those who do not follow the requirements violates their status and are considered “out of status”. “In Status” means you are in compliance with the requirements of your visa type under the immigration law.

Therefore, it is important to understand the concept of immigration status and the consequences of violating that status.

In an asylum claim, what is a well-founded-fear of persecution?

The decision whether to grant parole in place is discretionary.

Generally, parole in place is to be granted only sparingly. The fact that the individual is a spouse, child or parent of an Active Duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve, however, ordinarily weighs heavily in favor of parole in place. Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual. If USCIS decides to grant parole in that situation, the parole should be authorized in one-year increments, with re-parole as appropriate.

Each year mandatory detention results in the jailing of tens of thousands of people who pose no danger to their communities and are not a flight risk. Feeding this detention system is the mandatory detention provision of Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRAIRA), requiring that most people in deportation proceedings, base on their past offenses, no matter how remote in time, are held in custody, even if they are non-violent and the criminal system has determined they are not a risk to the community. Such a system cannot differentiate between a terrorist and a single mother of a U.S. children or a green card holder who’s lived here his whole life. The respondent remains in custody until completion of the immigration court case, and pending any appeals to the Board of Immigration Appeals and federal circuit courts, which can easily amount to years of detention.

I have noticed that there is some confusion out there about what our National Benefits Center (NBC) is and what it does.  The NBC serves a unique role within our organization as part of the Field Operations Directorate. The NBC was founded in 2001 in Lee’s Summit, Missouri and was originally called the Missouri Service Center (which is why receipt notices from the NBC will begin with the letters “MSC”).

The NBC’s primary mission is to prepare applications for adjudication that require an interview at a USCIS Field Office.   The NBC’s largest workload is Form I-485, Application to Register Permanent Residence or Adjust Status, and Form N-400, Application for Naturalization.

The NBC does not determine processing times of I-485 and N-400 application. NBC does not conduct final adjudication of those cases—a USCIS Local Field Office does. To check the processing times on I-485 and N-400 applications, go to local USCIS Office processing times.

By: Norton Tooby

Posted by:  Norka M. Schell

DUI and Immigration

Driving under the influence cases are very common, and fortunately do not in general trigger adverse immigration consequences. Assuming the case involves driving under the influence of alcohol, as opposed to drugs, a simple DUI conviction does not trigger deportation or inadmissibility. If the person is on probation for this offense, or any other, he or she is temporarily ineligible to naturalize until probation has ended. This type of conviction can constitute a moral turpitude conviction only if the offense includes not only DUI elements but also elements of knowingly driving on a suspended license. It is no longer considered to be a crime of violence aggravated felony, regardless of sentence. It can constitute a negative discretionary factor, and thus contribute to denial of discretionary immigration benefits. Aggravated DUI convictions and health-related issues are covered below.

Three aggravated types of driving under the influence convictions are driving under the influence of drugs, multiple DUI convictions (i.e., DUI with one or more prior DUI convictions), and DUI causing injury.

DUI and Drugs

Driving under the influence of drugs can sometimes constitute a controlled substances conviction, which can trigger deportation, inadmissibility, and bar some forms of relief from removal.  This is not always the case.  First, the state definition of controlled substances may differ from the federal list.  Only offenses involving controlled substances on the federal list will trigger adverse immigration consequences.  State convictions that definitely involve (or may involve) a drug that is on the state list but not on the federal list will generally not be considered a controlled substances conviction under immigration law.  Second, some states, such as California, may prohibit driving under the influence of “drugs” that are not even on the state controlled substances list.  See California Vehicle Code § 312 (“drugs” for purposes of driving under the influence of drugs includes any substance at all that may adversely affect the ability to drive, even if it is not on the state controlled substances list).  The record of conviction must be consulted to see whether it identifies the specific substance involved, and that substance must be on the federal list of controlled substances before the state conviction can constitute a controlled substances conviction under immigration law.

Multiple DUI Convictions

Since one DUI conviction (not involving a federal controlled substance) does not trigger adverse immigration consequences. Multiple convictions of simple DUI alcohol do not do so either.  Therefore, a DUI with one or more prior DUI convictions do not trigger adverse immigration consequences.

DUI with Injury

A conviction of DUI causing injury does not constitute a crime of violence aggravated felony or crime involving moral turpitude, and so does not directly cause adverse immigration consequences.  This type of conviction, however, may be considered as evidence that the person has a dangerous health condition that may constitute a medical ground of inadmissibility.  See “Health-Related DUI Issues,” below.

Being a habitual drunkard constitutes a statutory bar to showing Good Moral Character under INA § 101(f)(1).  Multiple DUI convictions can contribute to finding a noncitizen is a habitual drunkard.  Good moral character is a prerequisite to obtaining many different immigration benefits, such as naturalized U.S. citizenship.

Driving under the influence convictions can contribute to a finding of inadmissibility based on a physical or mental disorder – alcoholism – if it has caused a threat to the property, safety, or welfare of the alien or others under INA § 212(a)(1)(A)(iii). Simple DUI convictions generally do not cause a problem, but DUI with injury or other evidence a DUI has caused harm can trigger inadmissibility under this ground.

Employers that decide to hire foreign nationals affected by the Department of Homeland Security (DHS) and export control requirement must implement sophisticated procedures related to that hiring.

Although noncitizen in removal proceedings lack the full constitutional protections of criminal defendants or the broad discovered tools of civil litigants in Federal Court, the Immigration and Nationality Act and accompanying regulations provide a number of protections related to evidence. Aliens have an explicit statutory right to present evidence and cross-examine adverse witnesses. Evidence is not always easy to obtain, but aliens may need the resources of the court to exercise this right or to help meet their burdens of proof and production.

When a person in the United States in one nonimmigrant visa (temporary) status decides to engage in a primary activity permitted only under a different nonimmigrant (temporary) status – for example, a B-2 tourist decides to attend school, or an F-1 student decides to take up other than school-approved employment – the nonimmigrant visa has two options:

The United Nations (U.N.) Convention Against Torture and Other Cruel, Inhuman or Degrading  Treatment or Punishment (the Convention Against Torture or Convention) is a powerful tool to prevent the removal of persons who fear torture upon return to their countries, bu who are ineligible for asylum and withholding of removal. Article 3 of the Convention prohibits the United States from expelling, returning, or extraditing “a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”