As an immigration lawyer, every now and then I hear a question about someone who had been in the United States for over 10 years, has a U.S. citizen spouse or children, and pay taxes, who wants to know if she or he can qualify for employment authorization or any other immigration benefits based on the aforementioned facts.

Indeed, under the immigration law, there is a relief named “Cancellation of Removal” that, if granted, provides a person with the status of a lawful permanent resident (“green card”). Every year, there are 4,000 “green cards” allocated to this type of relief.

However, a person cannot apply for “cancellation of removal” unless the government placed her in removal proceedings in the first place. As the name of the application suggests, it is a defense to removal. In other words, it is something a person can ask an immigration judge for in order to prevent deportation. As such, cancellation of removal is NOT available outside the immigration court proceedings.

To qualify for cancellation of removal, a person must establish that: (1) she has been living in the U.S. for at least 10 years; (2) she is a person of good moral character and was not convicted of certain criminal offenses; and (3) that her deportation would result in “exceptional and extremely unusual hardship” to her U.S. citizen or lawful permanent resident spouse, child, or parent.

Ten years and the “stop-time” rule

Generally, 10 years are calculated from the time a person entered the U.S. until the time she was served with a Notice to Appear in immigration court (“NTA”). For example, if a person was served with a NTA shortly after coming to the U.S., the time counted towards the 10-year requirement stops right then and she would not qualify for cancellation of removal, even if she remained in the country for 10 years thereafter.

Good moral character

An applicant must demonstrate that she is a person of good moral character that warrants favorable exercise of court’s discretion. Among other things, timely filing and payment of taxes could speak to one’s good moral character.

With exception to a single petty offense, as narrowly described under the law, a conviction that is considered a Crime Involving Moral Turpitude (“CIMT”) or an Aggravated Felony will make a person ineligible to apply for cancellation of removal. Even if there was no jail time served or the conviction was subsequently expunged, the offense will still count for immigration purposes and may prevent the person from applying for cancellation of removal.

Hardship to a qualifying relative

First, it’s important to understand that courts only consider hardship to applicant’s spouse, child, or parent, who is a U.S. citizen or lawful permanent resident. No matter how severe, hardship to the immigrant applying for cancellation of removal, typically, does not count at all.

The level of hardship required in order to qualify for this relief is the highest under the immigration law. Although not specifically defined in the statute, generally it is significantly more than a hardship typically caused by separation or relocation to another country. Not a single factor, but rather a combination of economic, physiological, health-related, and other consequences of deportation are considered.

Procedure

Since this is a defensive application, it is decided by immigration court. The proceedings are adversarial, meaning that the government will be arguing against granting the relief. Each of the requirements enumerated in the beginning of this article must be proven by the immigrant. If application is denied, a person will be issued an order of removal and may be subsequently deported, unless she is eligible for some other form of relief.

It is true that once application is filed with the court, a person can apply for work permit and maintain it during the pendency of her case. However, that is only a temporary benefit that will terminate if the case results in deportation.

Finally, unless a person is already in immigration court proceedings, there is no way for her to apply for cancellation of removal and, as such, she should never put herself at risk of being deported in exchange for an illusive benefit of having work permit for few years.

It is worth mentioning that there might be other options available to someone who has a family and has been in the United States for such a long time, such as provisional waiver, deferred action, et cetera.

Keep in mind that the immigration law is one of the most complex areas of law in the United States. Always consult an experienced immigration attorney before applying for any immigration benefits.

DISCLAIMER: Attorney Advertisement. The information presented in this article is for informational purposes only and should not be construed as a legal advice. This information should not be relied upon without first seeking professional legal counsel.