Immigration Answers

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Asylum, Withholding of Removal, and Protection Under the Convention Against Torture

As a general rule, a person seeking protection from persecution must file her asylum application within one year of arriving to the United States. Although the reasons for asylum vary, every asylum applicant must establish that she has a well-founded fear of persecution on the account of her race, religion, nationality, political opinion, or membership in a particular social group.

An asylum applicant has a difficult burden of proving her asylum claim. Changes in immigration law after 9/11, which require stronger corroborative evidence, have made that burden even more difficult. This is why it is extremely important for asylum seekers to retain quality immigration attorneys to assist them in the asylum process.

In some circumstances, an asylum seeker’s application may be too late, or there are other reasons for being ineligible to apply. Individuals under these circumstances may still seek withholding of removal or protection under the Convention Against Torture (“CAT”) if they are placed into removal proceedings (Immigration Court). Although there are many important differences between withholding of removal and asylum, a withholding of removal application similarly requires proof that the person may be harmed or killed in their home country on the account of race, religion, nationality, political opinion, or membership in a particular social group. However, an applicant for withholding of removal has a much stronger burden of proof to establish in order to be granted that relief.

Our firm has assisted numerous clients with their asylum, withholding of removal, and CAT claims, including asylum seekers from Cuba, Colombia, Guatemala, Mexico, India, Qatar, Palestine, Uganda, Somalia, Sierra Leone, China, Laos, and Vietnam. If you are planning on seeking asylum, or if you are currently in removal proceedings, please contact our firm for an evaluation of your claim.

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Criminal Charges and Prior Convictions

Just like Americans, immigrants can find themselves caught up in the criminal justice system. But unlike U.S. citizens, immigrants may face far more serious consequences beyond an arrest record or a jail term. They can be deported, even for relatively minor misdemeanor convictions. A non-citizen’s criminal record can also harm his or her chances of obtaining a green card.

The immigration consequences of a criminal conviction can be severe and unfair. This is why our firm emphasizes the importance of identifying the adverse immigration consequences before a non-citizen pleads guilty to an offense. We specialize in advising criminal defense counsel by recommending plea arrangements that avoid these adverse immigration consequences.

Unfortunately, non-citizens may plead guilty to an offense without realizing the harsh immigration consequences. The firm also specializes in pursuing post-conviction relief for immigrants throughout the State of Wisconsin. Generally, postconviction relief for immigrants falls into two categories: (1) a motion in criminal court to withdraw a guilty or no contest plea and vacate the conviction, or (2) a motion in criminal court for a sentence modification to reduce jail or prison time. In both instances, a successful post-conviction motion will either stop deportation entirely or it will allow the immigrant to apply for relief in Immigration Court. To be effective in Immigration Court, a conviction must be vacated due to either a procedural flaw in the process or due to a Constitutional violation. In spite of the fact that post-conviction relief is difficult and relatively rare, the firm has successfully pursued such motions in over 50 cases in Wisconsin Circuit Courts, including cases in Brown, Dane, Door, Eau Claire, Grant, Kenosha, Kewaunee, La Crosse, Lincoln, Manitowoc, Milwaukee, Outagamie, Ozaukee, Racine, Rock, Sauk, Sheboygan, Walworth, Washington, Waukesha, Waushara, and Winnebago Counties. Due to the severe consequences of criminal convictions under immigration law, a postconviction motion is frequently the only possible option for avoiding deportation.

Prior to focusing his practice on immigration, Attorney Straub was a criminal defense attorney for almost a decade. During that time, he successfully defended hundreds of cases in state and federal court. Because of this prior experience, he has a unique combination of experience in criminal and immigration law. He is recognized by many of Wisconsin’s best criminal defense attorneys as the foremost expert in the state on the immigration consequences of criminal convictions.

If you or a loved one has a pending criminal charge or a prior conviction, please contact us for an initial consultation.

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Deportation Defense & Federal Litigation

Our firm serves clients in the following areas of immigration litigation: (1) deportation defense before the Executive Office of Immigration Review (“Immigration Court”); (2) appeals before the Board of Immigration Appeals (“BIA”) and the Seventh Circuit Court of Appeals; (3) motions to reopen prior orders of deportation; and (4) mandamus and habeas actions before the federal courts.

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Deportation Defense

At the Straub firm, we understand that immigration court can be frightening as well as confusing, especially when a loved one is being detained during the process. Our firm specializes in assisting immigrants who are placed into what is called “removal proceedings.” The firm has represented numerous clients at the Chicago immigration court. We are not only familiar with the immigration court system and the immigration bond procedure, but the firm also has acquired specialized knowledge regarding each immigration judge at the Chicago immigration court. We are also aggressive at holding the government to its heavy burden of proving a non-citizen’s deportability by clear, unequivocal, and convincing evidence.

If you or a family member are currently in removal proceedings, or have been served with a “Notice to Appear” (or Form I-862), you should know that there may be a number of available defenses that can help you or a family member remain in the United States.

Often, an immigrant is placed in removal proceedings because of one or more criminal convictions. Prior to focusing his practice on immigration, Mr. Straub was a criminal defense attorney for almost a decade. During that time, he successfully defended hundreds of cases in state and federal court. Because of this background, he has a unique combination of experience in criminal and immigration law. He is recognized by many of Wisconsin’s best criminal defense attorneys as the foremost expert in the state on the immigration consequences of criminal convictions. The firm also has successfully pursued motions for postconviction relief in on behalf of immigrants in Wisconsin Circuit Circuit Courts in over 50 cases, even though this type of motion is difficult and relatively rare. (See, Criminal Charges and Prior Convictions). Due to the severe consequences of criminal convictions under immigration law, a postconviction motion is frequently the only possible option for avoiding deportation.

Please contact our firm if you or a family member has received a Notice to Appear, has been detained by Immigration Customs & Enforcement, or has already been placed in removal proceedings before the Chicago Immigration Court.

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Motions to Reopen

We also represent immigrants who have been previously ordered deported by an immigration judge. Although the reasons can vary, a person can be unknowingly ordered deported in his or her absence if notice of the hearing was not properly received, or some exceptional reason prevented the immigrant from appearing at the hearing. In other cases, an immigrant may have received ineffective assistance of counsel from his or her prior attorneys, and such deficient performance resulted in a deportation order. Moreover, circumstances may have changed in person’s life that gives rise to new forms of relief that were previously unavailable.

At the Straub firm, we have assisted numerous clients with reopening their prior deportation orders. Since immigration law is a federal practice, we have reopened prior deportation orders throughout the United States.

If you have a prior deportation order, please contact our firm to discuss your options to reopen your immigration case.

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Appellate Litigation

If an immigrant loses her case before the immigration judge, she has an automatic right to appeal the judge’ decision within thirty days before the Board of Immigration Appeals (“BIA”). If the BIA upholds the immigration judge’s decision, then the immigrant may submit a second appeal before the federal appellate courts.

In addition to handling appeals before the BIA, our attorneys are licensed to practice before the Seventh Circuit Court of Appeals in Chicago, Illinois.

If you need assistance with your immigration appeal, please contact us for an appointment.

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Mandamus & Habeas Actions

Unfortunately, some immigrants have suffered lengthy and unexplainable delays with their green card or naturalization applications before U.S. Citizenship & Immigration Services (“USCIS”). The firm has helped numerous clients with undue delays by filing a lawsuit in the Wisconsin federal courts that compels the government to make a decision on a green card or naturalization application. In the case of a pending green card application, the lawsuit is called a “complaint for a writ of mandamus.” For pending naturalization applications, the lawsuit is called a “petition for hearing on naturalization.”

We also assist immigrants who have been wrongly detained by the government by filing writs for habeas corpus in the federal court system.

Please contact our firm if you are experiencing lengthy delays with your application, or have a loved one wrongly detained by the government.

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Employment-Based Visas

As general rule, most employment-based immigration visas first require the employer to establish that there are no available U.S. workers to fill the position offered to a non-citizen. This is accomplished by receiving a certification from the Department of Labor.

Once the Department of Labor approves the certification, then the employer must file an Immigration Visa Petition on form I-140. One of the purposes of the visa petition is to determine what preference category the non-citizen falls under. There are five employment-based preference categories. Most non-citizens fall under the second and third employment preferences. The second preference category includes professionals with advanced degrees or non-citizens who can demonstrate exceptional ability. The third preference includes professionals with Baccalaureate degrees (or the foreign university equivalent) and other skilled workers in certain fields. Once the I-140 is approved, and the priority date of the petition becomes current, the non-citizen must then apply for lawful permanent residency through the adjustment of status process.

In addition, employers may petition for non-citizen employees through non-immigrant visas. The most common non-immigrant visa for foreign nationals is the H visa, which includes specialty occupations (H-1B), nurses (H-1C), temporary agricultural workers (H-2A), and certain skilled or unskilled workers (H-2B).

If you are an employer interested in petitioning for a prospective foreign national employee, please contact our firm for an initial evaluation and consultation.

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Family-Based Immigration

Our firm assists U.S. citizens and their immigrant family members in the following areas of family-based immigration: (1) adjustment of status applications before U.S. Citizenship & Immigration Services (“USCIS”); (2) consular processing; and (3) K-1 fiancé visas.

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Adjustment of Status

In general, a person may apply for adjustment of status (that is, seek a “green card”) based on marriage to a U.S. citizen if that person was lawfully admitted and inspected to the United States. For example, a person who has overstayed his or her visitor’s visa may be eligible to adjust status. In other circumstances, a person may also be eligible to adjust status based on an adult U.S. citizen petitioner who is over the age of 21.

On the other hand, most undocumented immigrants who did not arrive to the United States on a valid visa cannot adjust status here based on marriage to a U.S. citizen, or based on other qualifying family members. There is, however, a very important exception. An undocumented immigrant may be eligible to adjust status if she was a beneficiary of a petition that was filed on or before April 30, 2001.

Sometimes an immigrant may be eligible to adjust status, but is considered inadmissible due to a criminal record or for other reasons. A person considered inadmissible must seek a waiver in order to obtain a green card. We assist immigrants with inadmissibility waivers during the adjustment of status process. We also assist immigrants with post-conviction relief in criminal court in order to avoid having to file a waiver.

At the Straub firm, we pride ourselves on not only preparing the adjustment of status applications, but preparing our clients with the adjustment interview before USCIS. Our representation includes that our attorneys will accompany the clients to the adjustment interview.

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Consular Processing

If an intending immigrant cannot adjust status in the United States, then she must travel back to her home country in order to complete the green card process. Consular processing differs significantly with the adjustment of status process. Not only is the process completed at a U.S. consulate abroad, but most consulate applicants often need an “unlawful presence” waiver.

Under immigration law, a person who is here illegally for one year or longer and leaves the U.S. to complete the green card process will trigger a ten year bar to returning to the U.S. unless the “unlawful presence” waiver is granted. Moreover, unlike adjustment of status interviews before USCIS, attorneys are generally not permitted to attend the visa interviews at the U.S. consulate.

If the unlawful presence waiver is not granted, a non-citizen may be faced with a ten year bar to returning to the United States. Given that it is vital that the unlawful presence waiver is granted, and the attorney cannot attend the interview, our firm stresses that each client is thoroughly prepared prior to leaving the U.S. for the consular interview. We also take great care in evaluating a client’s unlawful presence waiver before going forward with the consular process.

Although many of our consular cases have been at the U.S. consulate in Ciudad Juarez, Mexico, we have assisted immigrants at U.S. consulates throughout the world.

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Fiancee Visas (K-1)

Sometimes a U.S. citizen falls in love with someone overseas and proposes marriage. In this circumstance, a U.S. citizen must file a K-1 fiancé visa petition to not only ensure his or her future spouse will be admitted to the United States for the wedding, but to legally remain here thereafter.

The basic requirements of a K-1 fiancé visa include that the petitioner is a U.S. citizen, the couple intend to marry within 90 days of the non-citizen fiancé’s entry into the U.S., both the U.S. citizen and his or her fiancé are free to marry, and the couple have personally met within two years of the petition’s filing date.

If you are interested in filing a K-1 visa for your fiancé, please contact our firm for an appointment.

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Citizenship & Naturalization

The decision to become a U.S. citizen is one of the more exciting and serious decisions that an immigrant has to make. There are several important benefits to becoming a U.S. citizen. It allows immigrants to participate fully in the American political process, including the right to vote in federal or state elections, as well as the right to apply for certain government jobs that are only available to U.S. citizens. In addition, an LPR who becomes a U.S. citizen may also be able to immediately petition for a relative, and will be able to travel more freely with a U.S. passport.

In general, most applicants must satisfy the following requirements in order to become naturalized U.S. citizens:

  • A Lawful Permanent Resident (“LPR”) who is at least 18 years old
  • Continuous residence in the United States for at least five years subsequent to LPR status without leaving the U.S. for trips of six months or longer
  • Physical presence in the United States for at least half of the time (or thirty months) during there the five year continuous residency period
  • Residence for at least three months in the district or state where the naturalization application will be filed
  • A person of “good moral character” during the requisite five year period
  • Demonstrated basic knowledge of U.S. government and history (the U.S. civics test)
  • The ability to read, write, and speak basic English (the English test); and The understanding and willingness to take an oath of allegiance to the United States.

There are, of course, several important exceptions concerning these basic requirements of naturalization. For instance, a person who obtained his or her green card through marriage to a U.S. citizen may only have to wait three years before applying to become a U.S. citizen. Likewise, certain immigrants who are older and have been lawful permanent residents for a long time may not have to take the U.S. civics or English tests.

At the Straub firm, we are committed to thoroughly evaluating an immigrant’s eligibility to naturalize, as well as addressing any potential problems during the naturalization process. If you are interested in becoming a U.S. citizen, please contact the Firm to schedule an appointment.

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“We wanted to say a big thank you for helping our family. We wouldn't be where we are today if it weren't for you.”
–The Perez Family