Immigration Process FAQ

The deadlines that matter

Step by step

1. 1

   Work out which track you are actually on

   There are three broad routes and they behave differently. A petition-based case starts with someone filing for you — a relative or an employer — and waits on visa availability. A protection-based case, such as asylum, starts with your own application and its own one-year clock. A removal case starts with a Notice to Appear filed with the immigration court and is defensive from the first day. People frequently have more than one of these open at once, and the strategy question is which to lead with.

2. 2

   The petition, and the wait for a visa

   A family-based case begins with Form I-130, Petition for Alien Relative, filed by a U.S. citizen or lawful permanent resident. Approval of the petition establishes the relationship; it does not by itself give status. Except for immediate relatives of U.S. citizens, the case then waits for an immigrant visa number to become available in the applicant's category and country, which is what a priority date tracks.

3. 3

   Adjustment of status, or consular processing

   Adjustment of status is the process used to apply for lawful permanent resident status while present in the United States, on Form I-485, without returning to the home country. If you are not inside the United States, the visa must be obtained abroad through consular processing. Which route applies is a question of where you are and how you entered, and it is one of the places where taking the wrong step first can be very difficult to undo.

4. 4

   Work permission and travel while the case is pending

   Employment authorization is requested on Form I-765. Many pending applicants are eligible, but the eligibility category matters and so does the timing — an asylum applicant, for example, cannot file until 150 days after the asylum application and cannot be issued a document until it has been pending 180 days. Travel outside the United States while an application is pending carries real risk and should never be arranged before checking what it does to the case.

5. 5

   Biometrics, interview and decision

   USCIS schedules biometrics, then in most cases an interview, and issues a decision or a request for further evidence. Keep every notice, keep your address updated with USCIS, and treat any request for evidence as a deadline rather than a suggestion. Missing an appointment or a response window is one of the most common self-inflicted denials.

6. 6

   If you are in removal proceedings: the Notice to Appear

   A removal case is opened by a Notice to Appear filed with the immigration court, part of the Executive Office for Immigration Review within the Department of Justice. At the hearing the immigration judge must advise you of your right to be represented by counsel of your own choice at no expense to the government, tell you that pro bono legal services are available and confirm you have received the list of providers, confirm you have a copy of your appeal rights, and advise you of your opportunity to examine and object to the evidence, to present your own evidence, and to cross-examine the government's witnesses.

7. 7

   Identify the relief you are asking the judge for

   Removal defense is not only about contesting the charges. It is about the application you are putting in front of the judge — asylum, withholding or protection under the Convention Against Torture, cancellation of removal, adjustment of status where a petition supports it, or in some cases voluntary departure. Each has its own eligibility rules and its own evidence.

8. 8

   Appeal, on the short clock

   If the immigration judge rules against you, the appeal goes to the Board of Immigration Appeals on Form EOIR-26, and the deadline is short: 10 calendar days in most cases, and 30 calendar days only where the judge adjudicated an asylum application that was not denied under the specified bars. The deadline runs from the date the judge states an oral decision or mails or electronically serves a written one, extending to the next business day if it lands on a weekend or legal holiday. A party who has waived appeal cannot file at all.

9. 9

   Naturalization, when you get there

   After 5 years as a permanent resident — or 3 if you are married to a U.S. citizen — Form N-400 may be filed, and it may be filed 90 calendar days before the continuous residence requirement is actually complete. Naturalization also revisits your whole history, so anything unresolved in an earlier filing or a criminal record tends to surface here.

The Board appeal deadline is 10 days in most cases, not 30

This is the single most dangerous piece of outdated advice circulating about immigration appeals. Under the current regulation, the Notice of Appeal from a Decision of an Immigration Judge must be filed directly with the Board within 10 calendar days of the immigration judge's decision in all cases, except one category.

That exception is asylum: where an immigration judge has adjudicated an asylum application and did not deny it under INA § 208(a)(2)(A), (B) or (C), the notice is due within 30 calendar days.

In every case the clock is calculated from the stating of the judge's oral decision or the mailing or electronic notification of a written decision, and if the final day falls on a Saturday, Sunday or legal holiday it extends to the next business day. Anyone who waived appeal in the courtroom cannot file one, and any issue left out of the Notice of Appeal may be treated as waived.

• 10 calendar days — the general rule
• 30 calendar days — only for the asylum category described above
• Clock runs from the oral decision or the mailing or electronic service of a written one
• Extends to the next business day if it falls on a weekend or legal holiday
• Appeal waived in court cannot be revived
• Issues omitted from the Notice of Appeal may be deemed waived

Asylum: the one-year rule and the work-permit clock

Form I-589 must be filed within one year of arrival in the United States. The same form is used whether the claim is affirmative — filed with USCIS by someone not in proceedings — or defensive, filed in immigration court as relief from removal.

A spouse and children who are physically present in the United States may be included as dependents on the application, either at filing or at any time before a final decision. A child included as a dependent must be under 21 and unmarried.

Work authorization follows a two-part clock that is easy to misread. Form I-765 may be filed 150 days after the asylum application is filed, but no employment authorization document may be issued until the asylum application has been pending at least 180 days. Delays that the applicant requests or causes can stop that clock, which is why continuances have a cost that is not obvious at the time.

Cancellation of removal is two different applications

For a lawful permanent resident, cancellation requires at least 5 years as a permanent resident, 7 years of continuous residence in the United States after being admitted in any status, and no conviction for an aggravated felony.

For someone who is not a permanent resident, the requirements are entirely different: 10 years of continuous physical presence immediately preceding the application, good moral character during that period, no conviction of the specified disqualifying offenses, and proof that removal would result in exceptional and extremely unusual hardship to a spouse, parent or child who is a U.S. citizen or lawful permanent resident.

That hardship standard is deliberately demanding, and hardship to the applicant themselves does not count — only to the qualifying relative. Cases are won or lost on medical, educational and country-condition evidence about that relative, gathered long before the hearing.

Things you can check yourself

Two habits prevent a large share of avoidable disasters. The first is keeping your address current with USCIS and with the immigration court, separately — a notice sent to an old address still counts as sent, and a missed hearing can produce an in-absentia removal order.

The second is checking your own case status rather than relying on what you were told at the last hearing. The Executive Office for Immigration Review runs an automated case information system that reports the next hearing date and the status of an appeal, and USCIS case status is available online with a receipt number.

Keep a complete copy of everything filed on your behalf, including the receipt notices. If you change representatives, that file is what the next attorney needs on day one.

Common mistakes

• Letting the one-year asylum deadline pass while gathering documents — the application can be filed and supplemented afterwards.
• Assuming the appeal to the Board of Immigration Appeals is due in 30 days when in most cases it is due in 10 calendar days.
• Filing Form I-765 too early on a pending asylum case, before the 150th day, and treating the receipt as authorization to work.
• Traveling outside the United States while an application is pending without confirming what departure does to it.
• Not updating your address with both USCIS and the immigration court, then missing a notice.
• Missing a hearing, which can result in an order of removal entered in absentia.
• Relying on a notario or a form-filling service for advice about eligibility, and discovering the problem after a filing is already on the record.
• Accepting a criminal plea — including a Florida withhold of adjudication — without immigration advice, because immigration law may treat it as a conviction regardless.

Frequently asked questions