One of the most often asked questions that we run across is how long can a permanent resident stay outside the United States without losing his/her green card? This is a very complicated question that is circumstance specific. Permanent residents considering travel outside the US for extended periods of time need to sit down with an immigration attorney to review past travel history as well as any prospective future trips. The length as well as the purpose of any long trips outside need to be explored and in some cases, documented. There are some general principles, however, that one ought to be aware of.
1. Never assume that your client is a United States Citizen just because he/she appears to be. Just because your client has no accent and acts and talks like everybody else does not necessarily mean he/she is a citizen!
While many New Jersey residents who are not US Citizens are understandably concerned about whether Driving While Intoxicated (DWI) or Driving While Under the Influence (DUI) charges will result in their deportation, others are equally anxious that such charges may negatively impact their applications for citizenship or naturalization. In fact, generally speaking, a conviction or even several arrests for Drunk Driving, in violation of NJSA 39:4-50, could, arguably speaking, exert more of an effect on an application than the average person may realize. This is because one of the fundamental requirements in order to become a naturalized citizen is demonstrating that you have good moral character (GMC) over the last five years, or three years in some cases. A conviction for drunk driving during the statutory period will normally have to be disclosed on the application and addressed during the interview. Additionally, the applicant will be expected to furnish documents concerning the arrest and outcome. If the arrest or conviction was out of New Jersey, the applicant needs to obtain the Certified Disposition from the municipal court. Depending on the nature of the conviction and attendant circumstances (a high blood alcohol reading, an accident in which people were injured, etc.), an immigration officer could possibly deny the application on the basis that the conviction reflects poorly on your moral character. The chances of that happening are even more likely should you have two or more convictions within the statutory period.
There is an abundance of information out there on the internet. One can virtually learn about anything one desires on practically any subject. However, not everything you read out there is accurate or reliable. Here are some great sites that I personally consider excellent resources for trustworthy and current information on immigration topics and developments:
For an illegal or undocumented alien, sometimes the ramifications of a New Jersey arrest arising out of an alleged criminal act are more harmful than the penal consequences of the act itself. By this point, most if not all serious criminal defense practitioners are aware that non-US citizens need to be apprised of the immigration consequences before entering into a plea agreement or pleading guilty. This, of course, makes sense since some people unknowingly plead guilty to criminal offenses that render them deportable (and to make matters worse, subject them to mandatory detention) without fully appreciating the import of pleading guilty. The logic is that some of these people-had they been fully informed--may have elected to go trial rather than speed up their own removal. Padilla vs. Kentucky, the seminal and watershed Supreme Court case that defines the duty of criminal defense lawyers representing non-citizens, perceptively reframes the issue: it is not so much about the legal obligations triggered by collateral consequences but more about receiving effective assistance of counsel.
One of the more pressing concerns that some undocumented or illegal aliens in New Jersey have is whether they may pursue workers compensation claims. Many people are understandably concerned that due to defects or problems in their immigration status, they are not entitled to file or claim benefits. According to our friends at Levinson, Axelrod (a prominent Plaintiffs' Personal Injury Firm in New Jersey) this is not necessarily true.
The immigration laws can be especially strict. Under certain circumstances, an individual applying for a green card or immigrant visa may actually be barred or prohibited from permanent residence due to some problem, whether it be a criminal conviction, previous overstay, or misrepresentation in the application process. Fortunately, our system does allow for some of these problems to be forgiven or waived. Most waivers are filed on Form I-601, which is a broad based application that embraces many different types of waiver applications. Among the more waivers frequently applied are the following (understand that the waivers listed here only represent some of the more popular ones but by no means is a list of all the waivers that may be applied for):
While Cancellation of Removal is perhaps the most sought after form of relief in Immigration Court, it is an extraordinarily complex and labor-intensive application that is often misunderstood. First, respondents (people facing removal proceedings) should be aware that there are actually two different types of Cancellation of Removal Relief. One is for people who already have "green cards" or lawful permanent residence and the other, for people who do not have permanent residence. There are different requirements and criteria for each. The most distinguishing differences are: