Unlawful Admission and Immigration Status Adjustment

2008-02-18T20:28:00.000-08:00

As an attorney practicing immigration law in the primarily Hispanic Chicago neighborhood of Little Village, or "La Villita," I encounter a great deal of undocumented people looking to adjust their immigration status to "Legal Permanent Resident," and thus obtain their "Green Card." Unfortunately, U.S. immigration law makes it very difficult for many people to obtain this goal.

The most common problem encountered by undocumented residents is the so called "bar" to admission, incurred after a person unlawfully enters the country and stays here for a certain period of time.

The basic rule states that when an individual enters the United States without inspection, that is to say crosses the border without the knowledge and/or permission of the government, and stays inside the country for 6 months to 1 year, he or she incurs a 3 year bar to lawful admission. If the person enters without inspection and stays for over one year, he or she will incur a 10 year bar to admission.

To be barred from lawful admission means that a person has to prove that he left the United States, and has remained abroad for the requisite 3 or 10 year period, before being eligible for admission into the country.

In the past, a type of amnesty was offered to people falling into this group. Those that had an I-130 filed on their behalf by April 31, 2001 were not barred from admission by the above provisions if they paid a $1000 fine. Unfortunately, not everyone took advantage of that opportunity when it manifested itself, and many others did not even enter the country until after the deadline.

The reality is that many immigrants currently residing in the United States have come here illegally and have stayed here over one year since. Many of these people have US Citizen or Legal Permanent Resident relatives, and would otherwise be eligible to adjust their status. Fortunately, those people who would otherwise be barred by the law from admission have a chance to petition for a "hardship waiver."

The hardship waiver of the provisions is granted if the Petitioner (U.S. Citizen or Legal Permanent Resident) can establish that they will suffer a great hardship if the Beneficiary (the undocumented person) can not adjust his status and is forced to leave the country. The type of hardship contemplated here is primarily of extreme economic or medical nature.

Unfortunately, the emotional hardship of breaking up a family unit is not typically considered. Neither is hardship sustained by the Beneficiary, as only the Petitioner's hardship is considered. On the other hand, a strong case for a hardship can be made if the Petitioner is disabled and the Beneficiary cares for the Petitioner, or provides medical or economic support to him or her.

Unfortunately, the hardship waiver is not an easy remedy to obtain, and if it is denied, the Beneficiary can expect to be placed in deportation proceedings. However, given the state of immigration law today, given the right type of case, this may be the best course of action, and the only option to adjust status.

Dealing With a DUI

2008-01-14T12:39:00.000-08:00

Have you recently been pulled over for a DUI? As you probably know, getting arrested for a DUI can be a serious matter and real consequences for your record and personal life. Even as a misdemeanor, this violation could potentially carry up to 364 days in jail.

Let me be clear: Driving while intoxicated is dangerous and irresponsible. The best thing you can do is to avoid drinking (or using other drugs) while driving altogether.Having said this, if you are pulled over by the police and have been drinking, there are a number of points you need to keep in mind.

First of all, it is not necessarily against the law to drink and drive. It is however, against the law to drive if you are either actually intoxicated with blood alcohol level between .05 and .08 or have a blood alcohol level of above .08, at which point Illinois law presumes you are intoxicated. It is also against the law to drive while intoxicated by substances other than alcohol.

If your case goes to trial, it will be the prosecutor's burden to show that you were driving while intoxicated. They can use differnt types of evidence to show this, including the testimony and report of the police officer, any field sobriety tests administered, and chemical tests such as the breathalyzer that actually measure the blood alcohol level in your system.

If you seek to fight the DUI charges, it is probably in your interest to refuse to take field sobriety and chemical tests. The field sobriety tests are very subjective, and often times the police officer may interpret the results as indicative of intoxication even though you felt that you did well. Chemical tests are far more objective, and if they show a blood alcohol level above the legal limit, your license will automatically be suspended for three months. Furthermore, chemical test results are usually very strong evidence and a difficult obstacle for your defense attorney to overcome at trial.

However, while the law allows you to refuse chemical tests, doing so has the consequence of summarily suspending your license for a period of 6 months. Nevertheless, you are entitled to a hearing on a petition to rescind summary suspension. At this hearing, you will have the chance to establish at least one of several basis for rescision, such as that the officer did not inform you of the consequences of agreeing to and refusing the test, or that no reasonable grounds existed to pull you over in the first place.

On the whole, if you have been drinking and are pulled over, it is probably in your best interest to refuse the tests, so as not to make the prosecutor's job any easier. It is also very much in your interest to get an attorney to protect your license, record and rights under the law.

The Law on Your Side

Unlawful Admission and Immigration Status Adjustment

Dealing With a DUI