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Do I qualify for the 10-year rule?

By September 30, 2014No Comments

No, because it doesn’t exist.

People ask me this question frequently. There is this misconception out there that the Immigration and Nationality Act (INA) has a 10-year rule, which entitles some to get green card if they have been living in the country for 10 or more years.

To understand where this belief comes from we need a little bit of background.

There are two kinds of applications in the world of immigration: affirmative applications and defensive applications. Affirmative applications are those when you are just in the country without status or in a non-immigrant status (as in a tourist visa) and you apply for something: a work visa, a green card based on family petition, asylum, etc.

Defensive applications are those that happen—as the name itself reflects—when you are defending yourself, in the context of a process of deportation, or more technically called in immigration law: removal proceeding. Immigration and Customs Enforcements (ICE) or Customs and Border Patrol run into you somewhere and, for X or Y reasons believe you are not entitled to be here in the US. They cannot make that determination alone (with certain exceptions), so they send you to a different department: the Executive Office for Immigration Review (EOIR). They will give you in your hands a document called “Notice to Appear” (NTA). The NTA will say that you have to appear in front of an immigration judge, who is not a judge per se but an agent of the EOIR, knowledgeable of the immigration laws, and who acts as a neutral party (some more than others) between you and ICE.

Once in removal proceedings—not before—the INA provides for certain relief from removal, even if you are actually removable. One of those forms of relieve is called “Cancellation of Removal for Non-Permanent Residents” (COR)—the “10-year rule”. What does COF require? Many things. One of them is that you have to have been physically present in the US for a period of 10 years immediately before the date of your application (the NTA stops the time though, you can’t count the time it takes you to go through the removal process which could be years). The other requirements are that you are a person a good moral character, that you have not been convicted of any crime and finally that you establish that removing you from the US will result in “exceptional and extremely unusual hardship” (EEUH) to your US citizen (or permanent resident) spouse, child or parent.

Thus, the 10-year is probably the easiest part to meet. There is much more than 10-year to the “10-year rule”. For starters, you have to be in removal proceedings and, believe me; you do not want to be there. Once in removal, and you do not have some form of relief, everything is a gamble—very dangerous territory.

The EEUH requirement works as a sort of tie breaker, for lack of a better word. I think even pronouncing it creates hardship. A lot of people have good moral character, a lot of people has no criminal history, a lot of people has been in the US for more than 10 years, a lot of people has a US Citizen or permanent resident spouse, parent or child, BUT not a lot of people can prove that the spouse, parent, or child will suffer: “exceptional and extremely unusual hardship”. EEUH is a standard meant to be very hard to meet. In the spectrum of likely, probable, possible, improbable, unlikely and impossible, EEUH would fit after unlikely, just a hair shy of impossible. That is how hard this standard I meant to be. Separation from your minor US citizen children and wife alone will not cut it. This intent to make it hard for people to obtain COR is further reflected in the 4000 cap a year on cancellation of removal applications. This cap applies to all COR cases, not only our “10-year rule” ones. Supply is very low and demand very high.

There are many factors considered by a judge when granting COR. Among them are health, ages, and circumstances of the qualifying relative. As I have mentioned in previous blog entries, bad health—unfortunately—is a good thing when it comes to obtaining certain immigration benefits.

But not all is bad news. Despite the harshness of the COR standard, the 4000 cap have been met year after year. Immigrations Judges (don’t say this) are not enforcing a ridiculous law. This will, of course, irate close-minded constitutional attorneys but not us, who pick fairness first, and man-made law second.

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