Immigrants of LPR Status must show
- Green Card was obtained lawfully;
- Continuous residence in the US for 7 years after admission AND continuous status of LPR for 5 years before the “stop-time” rule is initiated (see below);
- No conviction of an aggravated felony;
- No offense triggering criminal inadmissibility/crime of moral turpitude; and
- Have not received relief in the past.
Immigrants of non-LPR Status must show
- Continuous and physical presence in the US for 10+ years (date of admission to date served Notice to Appear or commission of crime);
- Good moral character (No convictions of criminal inadmissibility or deportability grounds); and
- Exceptional and extremely unusual hardship to LPR or US Citizen relative (see below);
Absences from the U.S. for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days lead to a finding of failure to maintain continuous physical presence.
The Immigration and Nationality Act §240 provides that an immigrant’s continuous residence or continuous physical presence ends when:
(1) the immigrant has committed an offense referred to in section 212 that renders him inadmissible to the US under section 212 or or removable from the US under section 237 or 237 of the Act; or
(2) in the case of applying for cancellation of removal, when the immigrant is served with a Notice to Appear. Whichever is earliest.
In June 2018, the US Supreme Court issued a decision in Pereira v. Sessions which held that the plain language of the statute requires the Notice to Appear to specify the date, time, and location that the hearing will take place. This is in light of many immigrants being served notices which stated the date of their hearing is “to be determined,” resulting in their lack of awareness of suspended continuous presence. Furthermore, if you have been served a Notice to Appear for removal proceedings, check to see if your hearing has been assigned a specified time and place. Otherwise, failure to specify on the matter does not trigger the stop-time rule.
Exceptional & Extremely Unusual Hardship
Cases in which a noncitizen must display exceptional and extremely unusual hardship are tough cases to win as they are analyzed under a very restrictive standard. The hardship must not be to you, but to an immediate family member who is a US citizen or US permanent resident. Note, mere economic hardship will not qualify under the standard. The court will analyze several factors such as:
- Children’s ages
- Ability to support your family from your home country
- Availability of education and medication in your home country
Relief for extremely unusual hardship is not often granted. Consult with an immigration lawyer to analyze whether your case may be successful and granted relief under the circumstances.