By Jeremy B. Love, Immigration Attorney
There is a great myth that has been allowed to confuse and mislead many people with whom I have come in contact. I feel as an immigration attorney that it is my duty to address this issue to help others not become victims of such practices.
During the course of many immigration consultations, individuals have asked me about the 10-year visa. Often they've heard it from a friend, who is undocumented, has been in the US more than 10 years and after filing recently, they received a work permit and are presumably on their way to become permanent residents.
Even worse, often times I have encountered people who have received notices to appear in court and have no reason why. After an investigation I uncovered the truth of the matter.
I cringe every time at this explanation of their situation. Because usually, I discover that the actual case is much different than the person thought.
Usually I determine that the person in my office has a pending Cancellation of Removal case. Meaning, that they must appear in court to show extreme hardship to a US citizen, or they will be removed from the US.
The immigrant is often shocked to hear this because they had no idea that they had a removal case or that they had to appear in court. Generally, they tell me that they only thought they were filing for a work permit or for permanent residence.
Too often they have fallen prey to immigration fraud scams by notarios or unscrupulous lawyers who promise the moon only for the client to find out that they have been duped.
So, what is the 10-Year Visa? It doesn’t exist. It is a myth. Cancellation of Removal includes a 10-year requirement, but there are many more requirements and it is not a visa but a defense to deportation.
Well, what is Cancellation of Removal?
Cancellation of Removal allows someone who is currently in a removal proceeding with the Immigration Court and has immediate relative US citizen family who would suffer extreme hardship to stay in the US and obtain permanent residence.
Cancellation of Removal is only available for someone who has been in the US for at least 10 years prior to a removal action being filed with the Immigration Court. Also, the respondent must show that he/she is a person of good moral character without a serious criminal or immigration history.
What’s the risk in seeking Cancellation of Removal if you’re not in a removal proceeding? Well, if your case is denied, there is a very real possibility that you will be removed from the US.
In order to be approved for Cancellation of Removal, according to 8 U.S. Code § 1229b, you must show that “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”
A good example of a case that was recently approved, involved a man who has been in the US for 15 years, with no criminal or immigration history, and whose US citizen wife suffered from a serious illness and needed his assistance in the US to obtain her medical treatment.
That case is one who Without showing extreme hardship, the case will likely be denied.
Due to the risk involved in Cancellation of Removal, generally it is only advisable if you already have been picked up by ICE and removal proceedings have been initiated. Otherwise, there may be less risky options.
What should I do if I’ve already filed? Remember that if you have retained an attorney to assist you with your case, you cannot retain a new attorney without first terminating your attorney-client relationship with your current attorney.
If you have not already, seek the assistance of an experienced immigration attorney to assist you in your case. See www.ailalawyer.com for a list of immigration attorneys.
There are many myths and common misconceptions regarding immigration law. In my experience, this one is one of the worst due to the risk involved and the expense of the process.
Hopefully, this article will clear up some of the misinformation and help those to better understand the complexity of immigration law. For more information on Cancellation of Removal, common immigration myths or other issues regarding immigration law, please see our Immigration 101 page.