IMMIGRATION- CHARGING DOCUMENT

If you are in the United states without a valid status or visa, you may be removed from the United States. To do so, the government must issue a charging document (Notice to Appear or Order to Show cause.) The charging document should include:

  • The reason for inadmissibility or deportability
  • When, and how you entered the United States
  • legal authority for the proceedings
  • act or conduct that allegedly violated the immigration law
  • Right to be represented by an attorney
  • Time/place of hearing
  • Your Identity

 

Notice to Appear: Under 8 CFR 1003.13, the NTA should be served in person or by mail.

Order to Show Cause: Also known as OSC, is a document used before April 1, 1997. It is very similar to the NTA. Except this document must be served by personal service or certified mail ONLY.

 

While all immigration hearings are civil matters, it often feels like a criminal matter. Because it is civil matter, the court does not provide an attorney for you. However, you still have right to be represented by an attorney. When you contact an immigration attorney for your removal/deportation work, you must bring Notice to Appear or Order to Show Cause.

A person in the proceeding has the following rights:

  1. REPRESENTATION by counsel: while the court does not provide you with an attorney, you can always retain one for you
  2. Right to be given a list of available legal services that are updated quarterly
  3. Right to contact your Consulate: you have right to be notified that you can communicate with the consul or diplomatic officer of your country of nationality
  4. Translation: Due Process requires that you be afforded competent translation service if you don’t speak English
  5. Right to examine Evidence
  6. Right to be advised of eligibility of relief
  7. Right to Due Process: the 5th Amendment guarantees you in removal proceedings the right to due process and the opportunity for a full and fair hearing!

 

Visa Waiver Program and Adjustment

Under the Visa Waiver Program (VWP), nationals of certain countries (South Korea, Canada, UK among others) can enter the United States without a visa. Generally, those admitted under the VWP cannot change or adjust status under INA 245A. However, there is an exception for immediate relative.

Definition of Immediate Relative under the INA:

Immediate Relative means spouses, children (under 21 of age and unmarried) of U.S citizens (USC).

VWP and Immediate Relative Exception:

An individual admitted under VWP can stay in the United States for 90 days (usually.) Immediate relative can seek to adjust within the 90 day window.

There are local USCIS offices that have taken much more generous approach. Depends on the location, the local USCIS may adjust the VWP immediate relative’s adjustment of status even after the 90 days window. However, this guideline/exception is informal and may be changed in future.┬áPlease consult with a local immigration attorney.

THEREFORE, please consult with a local immigration attorney if you wish to adjust your status. There may be local rules/customs that you should be aware.