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Can I be deported?

Posted on February 1, 2026 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been out of status for a number of years. Currently, I have a couple different petitions going forward. Once is a sibling based family petition, and the other is an employment based Labor Certification. I was told that it would take about another three to four years to be able to adjust my status to that of a Lawful Permanent Resident. There have been many news stories of people begin picked up by INS and deported, I am afraid for myself, my wife and my children. Can I just be deported?

Answer: Under most circumstances, the answer is no. Because you are here in the United States, you are allowed the opportunity to go in front of an Immigration Judge. Only if you had a previous deportation order can INS just take you and deport you without giving you a hearing. It is your constitutional right. Unlike many other countries around the world, even if you are not a citizen or a lawful permanent resident of the United States, you are entitled to due process. This means that you have an opportunity to present your case, to question witnesses, to cross examine witnesses who testify against you, to apply for relief or ways of staying permanently in the United States and to appeal decisions of the Immigration Judge that you are not satisfied with.

Question: What exactly might happen?

Answer: Each case is different. However, if you are targeted by INS, you should be served with what is known as a Notice to Appear. This is the beginning of the process. You might be taken into custody upon which you would be able to try to get a Bond Redetermination Hearing to get bonded out or become free while the immigration case is going forward. Then, over the next six months to two years, you will present your case in front of the Immigration Judge with the hope of winning.

Question: Am I entitled to an attorney?

Answer: Yes. You have every right to have an attorney represent you through these proceedings. However, unlike criminal cases, you must pay for the attorney to help you. The State will not provide one free of charge.

Question: How can the U.S. Constitution protect someone in my position?

 Answer: Because the U.S. Constitution gives people their rights as free persons in this country. If the U.S. Government were to just pick someone up and deport them, there would not be any safeguards against possible mistakes they may make. Also, the law allows people who are out of status to obtain their Green Cards based upon certain criteria. The government allows you to present that evidence. Just remember that this is the best country in the world to live in (no offense to those people elsewhere) and one reason it is such a great place to live is because individual rights are valued and treasured by our Constitution.

 However, the United States Government seems to be taking various rights away from certain immigrants. Therefore, you will have to make certain that you contact an immigration attorney right away in order to protect your rights and not be wrongfully deported.

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Can he be bonded out?

Posted on January 29, 2026 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have a friend that was taken into deportation and would like to know if he can be bonded out. Can you give me some guidance?

ANSWER: A wide range of INS officials have the power to arrest and detain people. The INS can arrest a person without a warrant if it has “reason to believe that the alien … is in the United States in violation of any [immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest.”

QUESTION: What happens after a person is arrested on a suspected immigration law violation?

ANSWER: S/he should be examined “without unnecessary delay” by an INS officer on his or her right to enter or remain in the United States. The officer examining the individual after arrest should not be the arresting officer unless another qualifying officer is not available and taking the person before another officer will cause unnecessary delay. If the examining officer finds prima facie evidence that the person arrested has violated the immigration laws, then the officer will place him or her in removal proceedings or institute expedited removal, if applicable.

If the INS places the person in removal proceedings, it should notify him or her of the reasons for his or her arrest. The examining officer should also inform the individual of his or her right to counsel at no expense to the government and provide him or her with a list of free legal service providers. The officer should also warn the person that any statement that s/he makes “may be used against him or her in a subsequent proceeding.”

The INS may hold a person arrested without a warrant for 48 hours or longer “in the event of emergency or other extraordinary circumstances.”12 On or before the conclusion of this period, the INS must determine whether the individual will continue to be detained or released on bond or recognizance. It must also decide whether to issue a Notice to Appear (NTA) and an arrest warrant.13

QUESTION: How does INS determine who should be released and under what conditions?

ANSWER: The local INS District Office (usually the Detention and Deportation Unit) makes the initial custody and bond determinations.14 As long as the s/he is not subject to mandatory detention due to criminal or terrorist grounds, the INS may release the individual on bond or on recognizance.15

In order to be released, a person “must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” The factors commonly considered in making the determination to release and/or set bond include: 1) Local family ties;
2) Prior arrests, convictions, appearances at hearings; 3) Membership in community organization; 4) Manner of entry length of time in the United States; 5) Immoral acts or participation in subversive activities; and 6) Financial ability to post bond.

After September 11, the government’s concern about security and intelligence gathering may also play a crucial role in deciding whether a person will be detained or released.

QUESTION: Can a person work once s/he has been released from INS custody?

ANSWER: The person can work as long as s/he is a lawful permanent resident (LPR) or is otherwise authorized to work, such as where s/he has received authorization to work based on a pending adjustment or asylum application.

QUESTION: Can a person challenge the INS’s custody/bond determination?

The regulations prohibit the following groups of people from requesting an Immigration Judge to review the INS’s custody and/or bond determination: 1) those considered to be “arriving aliens”; 2) those charged with being deportable on security, terrorism and related grounds; or 3) those subject to mandatory detention.

Even though an Immigration Judge does not have jurisdiction to redetermine custody and/or bond for the above groups, s/he does have jurisdiction to review whether the INS correctly determined that an individual does in fact belong to one of these groups.

Everyone else may request an Immigration Judge to review the INS’s custody and/or bond decisions at any time until a removal order becomes final. A request for custody and/or bond redetermination may be made orally, in writing, or by telephone, if the Immigration Judge permits in his or her discretion. If the person is detained, the request for custody and/or bond redetermination should be made to the Immigration Court that has jurisdiction over the place of detention. Otherwise, the request should be made to the Immigration Court that has administrative control over the case.

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HOMELAND SECURITY. WHAT DOES IT MEAN?

Posted on January 14, 2026 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have different petitions going through for my family. Other relatives are unfortunately in Removal/Deportation Proceedings. I understand that government is planning on restructuring certain departments. Will they restructure INS, and if so, what does that mean for us?

Answer: It appears as though either some or all of INS will be part of the new cabinet level division of the government. It will be known as Homeland Security. However, if it is done in a rash manner without giving the immigrants their rights, then it will hurt those immigrants trying to get her legally and to become legal in the future.

An effective, efficient, and fair immigration system is crucial to our national security and is fundamental to which we are as a people and as a nation of immigrants. Our immigration system must be reorganized. Our immigration system needs to be restructured on the basis of longstanding principles outlined by lawmakers, policy experts, and immigrant advocates.

These principles include: coordinating the separated enforcement and service functions, placing a strong leader in charge of both functions, and adequately funding enforcement and services.

If our immigration functions are included in the new Homeland Security Department, they must be reorganized within a separate division headed by a strong leader.

Question: What exactly will this new department do?

It is unclear at this time exactly what will happen and when it will happen. However, a new division, Immigration Services and Security, should be created within the Department of Homeland Security, headed by an Undersecretary who is knowledgeable about both services and enforcement. Immigration Services and Security should be made up of three sections: Immigration Services, Border Security, and Interior Security.

To enhance our security and support our border functions, a Transportation and Commercial Goods Security division also should be created. This division, along with the Immigration Services and Security division, would replace the proposed Border and Transportation Security Division.

The proposed Homeland Security Department must address concerns about civil rights, oversight, privacy, due process, and visa processing. The new agency must include an office to ensure that the constitutional and civil rights of all persons are protected as the agency carries out its national security mandates.

Policy development for visa issuance needs to remain a function of the State Department to avoid the chaos that would result from separating policy and process and to best address our foreign policy and U.S. business interests.

The Executive Office of Immigration Review (EOIR) must remain outside of the Department of Homeland Security, and be constituted as an independent agency in order to guarantee the impartiality and checks and balances of our justice system. Otherwise, it will be as though the Prosecutor is both the opposing attorney and the judge on the same case.

In order for any reform to be effective, Congress must take the time to get it right, overhaul our immigration laws, and protect both our nation and our values and traditions.

Creating a Department of Homeland Security is an enormous undertaking, and Congress must take the time to get it right. We cannot afford the mistakes and oversights of a hasty examination. There is too much at stake.

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A new way to beat Deportation

Posted on January 12, 2026 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been here in the U.S. since I was six years old. About 12 years ago, I committed a drug crime of possession for sale. I was sentenced to 4 months. Now, all these years later, I have been put into removal proceedings where INS is trying to deport me. I have been told that I am an aggravated felon and there is nothing I can do. I have further been told that I will most likely be deported away from my family including my U.S. Citizen spouse and three U.S. Citizen Children. I have never done anything else criminally and it was just a stupid mistake when I was young. I have changed, have a good job, a family with U.S. Citizens and many community ties. Is there anything I can do?

Answer: As the law stands now, there is very little you can do. This is a result of the 1996 laws which increased dramatically the laws on what was considered to be an aggravated felony. It has torn families apart for many years since 1996. People who have become long term residents in the U.S. and have their Green Cards found out it did not make any difference. They were still deported. Furthermore, they found out that they were barred from coming back into the U.S. for the rest of their lives. Congress has seen all the suffering caused by the unfair and anti-immigration laws of 1996 and just this week the House Judiciary Committee passed the 2002 Due Process Reform Bill. While it still must be passed by the Senate and signed by the President, it is an excellent step in giving back some of the due process rights lost by long term residents who were put in deportation proceedings because of various crimes.

Question: How does this particular bill help me?

Answer: Please note that the Senate might change some of the provisions, or the President might require some alternate items in the bill. However, as the bill stands now, it applies specifically to people who previously had their Green Cards. They were or are going to be placed into deportation or removal proceedings because of a crime they committed. They are considered to be an aggravated felons and do not qualify for the normal Cancellation of Removal.

Question: What is Cancellation of Removal?

Answer: Prior to this bill there was a section of the bill referred to as Cancellation of Removal for Certain Lawful Permanent Residents. Generally, you had to have your Green Card for at least five-years and be physically present in the U.S. for at least seven-years. Finally, and this is the item that disqualified numerous people, is that you cannot be convicted of an aggravated felony.

Question: What does the new bill allow?

Answer: Basically it deals with the Cancellation of Removal for people who have committed aggravated felonies. In the new bill, it expands the Cancellation of Removal so that it allows people whom have been convicted of aggravated felonies to still keep their Green Cards and stay in the U.S. It deals with three different scenarios. First, people who have been convicted of a non violent aggravated felony. Second, people who were convicted of a violent aggravated felony. Finally, people who have been convicted of an aggravated felony and came to the U.S. as a young child. Each of these provisions allows a person to remain in the U.S. and to not be deported if the Judge grants the Cancellation of Removal. Therefore, this is a very big step toward restoring some of the harsh anti-immigrant provisions of the 1996 law. Hopefully, this trend will continue so that families can be reunited and the tearing apart of immigrant families will stop. .

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Title: Why am I penalized because my father became a U.S. Citizen?

Posted on January 11, 2026 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have seen your previous articles on the new Age-Out provisions of the law just recently passed. My father filed a petition for me around 1993. I am from the Philippines. He was a Lawful Permanent Resident at the time. Three years ago he became a U.S. Citizen. I was actually called for the interview at the U.S. embassy in the Philippines, but when they found out my father was a U.S. Citizen, they said my visa number was not current and made me leave. Can I still avail of this new law?

Answer: Yes. The President of the United States has just signed a bill referred to as the Child Status Protection Act. While a large part of the bill deals exclusively with persons who are going to ‘age-out’ or turn 21 years old, there is a very specific provision in the bill for people in your situation. It is specifically for persons who are the unmarried sons or daughters of a Lawful Permanent Resident parent. Once petitioned, the visa number availability falls under a certain preference category for Lawful Permanent Residents. That parent petitions them and at some later point naturalizes and becomes a U.S. Citizen. This now moves the petition into a different category where the wait for most of the rest of the world (other than the Philippines) is considerably shorter.

Question: What exactly does this bill do?

Answer: It gives you the right to write the Attorney General and tell him that you do not want the preference to automatically change. In other words, for people in your exact situation, you can make an election for the preference to stay exactly the same as if your mother was still a Lawful Permanent Resident

Question: What exactly does that do?

Answer: It means that you do not have to wait another 5 years to get your Green Card. Let’s pretend that your mother is still a Lawful Permanent Resident. If the priority date is current now, you can apply right now for Lawful Permanent Residency without waiting another 5 years. You will be able to be joined with your family years earlier.

Question: My friend is in the same situation, but she got into the U.S. and her kids did not. Can her children avail of this section?

Answer: Most probably not. Once there has either been a final Adjustment of Status or issuance of Lawful Permanent Residency, the law seems to indicate that derivative beneficiaries (i.e. the children) are no longer eligible. However, if it is still pending, then the law can be taken advantage of.

Question: It seems as though this law just came out. My mother filed the petition for me many years ago. Can I still take benefit of this new law?

Answer: The answer is yes. The law allows you to take advantage of this law if the petition for your family preference was filed, but a visa has not yet been issued, or you have not yet adjusted your status. Also, the petition for the family preference can be pending as of now either with the Department of State or the Department of Justice. It is a very nice law for people especially from the Philippines. Therefore, anyone who has been waiting years for this petition to become current, only to learn that they must wait many more years after becoming a U.S. Citizen, should take advantage of this law right away.

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Title: Will I qualify for a work permit?

Posted on January 6, 2026 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I entered the United States a couple of months ago as a visitor and would now like to work in the United States. I have a degree in Business with an emphasis in accounting and have a couple of firms interested in hiring me. Do I qualify for a work permit, and if so, what must I do?

Answer: First, based upon your degree, you qualify for what is known as a Specialty Occupation Work Visa. This is also known as the H-1B. It is meant for positions which require specialized knowledge and where a college degree is the norm for the industry. Therefore, your position would qualify. You would need to be hired as an accountant.

Question: How do you know that an accountant is a specialty occupation?

Answer: There are many sources that can be viewed from the Department of Labor. These sources are either on the internet, or in printed publication. It basically states what the normal duties for the particular position are and what are the normal educational requirements needed to successfully perform the job.

Question: What type of company must sponsor me?

Answer: As an accountant, any company can sponsor you. Every company can use an accountant. If you had said that you had a degree in biology, your sponsoring companies would have to be much narrower. They would specifically have to deal with biology. The H-1B can be full-time or part-time.

Question: Do I have to leave the U.S. to get the visa?

Answer: Yes, you would have to leave the U.S. to get the visa. However, should you want to stay in the U.S., you can get a change of status from B2 (Visitor), to H-1B (Specialty Occupation Work Visa) Then, you would not have to leave the United States in order to start working for the company. However, if you did leave the United States, you would have to get the Visa in order to return to the United States. It is always possible to get the Visa approved at INS, but to get it denied at the Consulate. You would want to take this into consideration if you decided to leave after successfully getting your status changed to H-1B.

Question: How long does it take to get the answer from INS on whether they will approve the H-1B Petition?

Answer: Now it is taking from 6 to 9 months depending where you live. Should you want it much faster than that, you can put it through INS via Premium Processing. This is exactly what it implies. It goes to the top of the stack and is processed by INS within 15 days of receipt. All you need to do is pay INS $1,000.00 for them to process it as a Premium Process case. If they do not get the answer back to you within 15 days, then you get your $1,000.00 back.

Thus, the H-1B is a very good visa for someone with a college education to have. If you can get a sponsor related to your college degree, then you can see if the H-1B can be done. Usually, it is issued initially for 3 years and can be extended for another 3 years. In cases whereby the person has applied for Labor Certification and has waited for a considerable period of time, they can now apply for an even further extension of the H-1B. It is one of the nicest and most popular work visas available.

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Title: Any new Immigration Laws?

Posted on January 5, 2026 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I know that Congress has a ‘lame-duck’ session now. I was wondering if there were any new and recent developments in the immigration laws.

Answer: There has actually been quite a bit that has been recently signed into law by President Bush. Here is the summary of those recent laws.

On November 2, President Bush signed into law the “21st Century Department of Justice Appropriations Authorization Act.” It includes the following.

Waiver of Foreign Country Residence Requirement with Respect International Medical Graduates. Extends until 2004 the “Conrad State 20” program, which allows states to request waivers of the two-year home residence requirement of INA § 212(e) for certain J–1 physicians who agree to work in medically underserved areas for a period of at least three years, and raises the number of visas available per state from 20 to 30.

Posthumous Citizenship for Non-Citizen Veterans.: Extends the deadline for allowing family members to apply for honorary posthumous citizenship for noncitizen veterans who died while honorably serving the U.S. in past wars.

Extension of H-1B Status for Aliens with Lengthy Adjudications.: Recognizing that lengthy processing times by the Department of Labor have precluded some H-1B visa holders from being eligible to apply for a one-year extension of H status pursuant to the American Competitiveness in the 21st Century Act of 2000, this provision is intended to permit aliens who have labor certification applications caught in lengthy agency backlogs to extend status beyond the six-year limitation. As long as 365 days have elapsed since the filing of a labor certification application (that is filed on behalf of or used by the alien) or an immigrant visa petition, H-1B status can be extended in one-year increments. This will be true even if the alien has since changed his or her status or left the country. If an application for a labor certification or adjustment of status or a petition for an immigrant visa petition is denied, the extended H-1B status ends at that point.

Application for Naturalization by Alternative Applicant if Citizen Parent Has Died: Amends the INA to authorize a child’s grandparents or legal guardian to submit an application for naturalization on behalf of the child under section 322 of the INA where the child’s parent, who otherwise would be authorized to submit the petition, died during the preceding five years.

Also on November 2, the President signed the “Border Student Commuter Act of 2002”. The new law amends INA §§ 101(a)(15)(F) and (M) by creating a new border commuter nonimmigrant classification under the F and M visa categories for Canadian and Mexican nationals who maintain residence in their country of nationality and commute to the U.S. for full- or part-time academic or vocational studies. The legislation was triggered by a May 22, 2002, INS proclamation that commuter students residing in contiguous territory would no longer be allowed to enter the U.S. as visitors to attend school on a part-time basis.

President Bush, on October 29, signed the “Persian Gulf POW/MIA War Accountability Act” to provide refugee status to any alien (and his or her spouse or child) who: (1) is a national of Iraq or a nation of the Greater Middle East Region; and (2) personally delivers into the custody of the U.S. government a living American Persian Gulf War prisoner of war or individual missing in action. Excepted from the Act’s benefits are persons who are ineligible for asylum (including terrorists, persecutors, certain criminals, and individuals presenting a danger to the security of the U.S.).

On September 30, President Bush signed the “Foreign Relations Authorization Act for Fiscal Year 2003” (H.R. 1646, Pub. L. No. 107–228). The Act contains numerous immigration-related provisions, including authorization for $4.97 billion in appropriations for the administration of foreign affairs in fiscal year 2003.

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Not all Drug Crimes are Aggravated Felonies.

Posted on January 4, 2026 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am a Lawful Permanent Resident and have been convicted of a drug crime of possession. I have heard that there is no chance to win in Immigration Court. Is this true?

Answer: Since 1996, the list of crimes constituting aggravated felonies was increased tenfold. Since that time, there have been numerous Petitions for Review filed in Circuit Courts of Appeal to determine which crimes actually fall under the ambit of an aggravated felony.

One such crime deals with convictions for drugs. Under the Immigration and Nationality Act Section 101(a)(43), a ‘drug trafficking’ crime is considered to be an aggravated felony. Thus, the critical point is what is considered to be a drug trafficking crime. The case Cazarez-Gutierrez v. Ashcroft has ruled on what they consider to be a drug trafficking crime.

Petitioner Jesus Aaron Cazarez-Gutierrez (“Cazarez-Gutierrez”) appealed the decision of the Board of Immigration Appeals (“BIA”) finding him statutorily ineligible for cancellation of removal because he was convicted of the “aggravated felony” of a “drug trafficking crime.” Id. People who have their ‘Green Cards’ and are long time lawful permanent residents in the U.S. are generally eligible for what is known as cancellation of removal. This is where the immigration judge essentially decides whether all of the resident’s equities outweigh the crime.

A lawful permanent resident is eligible for discretionary cancellation of removal if he: (1) has been lawfully admitted for permanent residence for not less than five years; (2) has resided in the United States continuously for seven years after having been admitted in any status; and (3) has not been convicted of any aggravated felony. 8 U.S.C. § 1229b(a). If cancellation of removal is granted, then the resident is given his or her ‘Green Card’ back and allowed to stay in the United States.

However, if one has been convicted of an aggravated felony, they are not eligible for Cancellation of Removal. Thus, in Gutierrez, supra, the immigration court and the BIA ruled that he was ineligible for cancellation of removal because he was convicted of an aggravated felony.

The first two elements of eligibility for cancellation of removal are not at issue. This case turns upon whether Cazarez-Gutierrez’s state-court felony conviction for possession of methamphetamine is an aggravated felony for immigration purposes.

In January 1999, an Immigration Judge (“IJ”) found Cazarez-Gutierrez removable because of his conviction, but exercised his discretion to grant him cancellation of removal. The government appealed the decision, arguing that the IJ had abused his discretion in granting Cazarez-Gutierrez cancellation of removal. On August 30, 2002, the BIA reversed the cancellation of removal, holding that Cazarez-Gutierrez is statutorily ineligible for cancellation of removal because his conviction for possession of methamphetamine is an “aggravated felony”.

The court went into some analysis of how other circuits have ruled. It stated that Congress had passed these laws in order to try to give some uniformity to the immigration laws. Therefore, this court ruled that a state drug offense is an aggravated felony for immigration purposes only if it would be punishable as a felony under federal drug laws or the crime contains a trafficking element. It followed the general reasoning of the Second and Third Circuit Courts of Appeal and rejected the contrary view put forth in the Fifth Circuit Court of Appeal. Given the strong desirability of uniformity in the application of immigration law, the court ruled that it should interpret immigration law to be nationally uniform absent clear indication that Congress intended otherwise.

In analyzing the intent of Congress to make the laws uniform in this type of case, the court referred to the development of the definitions of “aggravated felony” and “drug trafficking crime” in the INA and how it showed that Congress intended a federal definition for those terms.

In summary, the court held that a state drug offense is not an aggravated felony for immigration purposes unless it is punishable as a felony under the CSA or other federal drug laws named in the definition of “drug trafficking crime,” or is a crime involving a trafficking element. Cazarez-Gutierrez’s offense, possession of methamphetamine, was not punishable as a felony under federal law and involves no trafficking element. Therefore, his offense is not an aggravated felony for immigration purposes, and the BIA erred in finding Cazarez-Gutierrez statutorily ineligible for cancellation of removal.

Thus, you should apply for and be eligible for cancellation of removal in order to keep your Lawful Permanent Resident Status.

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Will my son be sent back home?

Posted on December 30, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am a lawful permanent resident and have petitioned my wife and son many years ago. Just recently I found out about the V Visa which allowed my wife and son to come to the United States and reside with me while we are waiting for the visa number to become current. However, my son is going to be 21 years old in two months. I have been told by USCIS that he will have to return home and he can no longer reside here on the V Visa. I have missed him so much that I cannot bear to be separated for years to come. Is there anything I can do?

Answer: Actually, there was just a case that came out in the Ninth Circuit Court of Appeal. Therefore, if you live in the jurisdiction of the Ninth Circuit (basically the Western United States), then you are in luck.

In this case, the court held that Immigration regulations terminating V nonimmigrant status the day before the visa holder’s 21st birthday, was contrary to Congress’ intent to reunite families when it enacted the Legal Immigration Family Equity Act (“LIFE Act“).

As background: the LIFE Act added a new nonimmigrant visa category, INA § 101(a)(15)(V). Spouses and children of lawful permanent residents who have been waiting for permanent resident status for at least three years are eligible for V visas. These V visa holders are entitled to certain benefits, including employment authorization. The INS regulations implementing INA § 101(a)(15)(V) provide that V visa status “will be granted a period of admission not to exceed 2 years or the day before the alien’s 21st birthday, whichever comes first.” Upon termination of V nonimmigrant status, the individual is no longer eligible for employment authorization.

In this Ninth Circuit case, the government argued that, the court should allow the USCIS regulations to stand. The court ultimately disagreed, stating “[w]e do not owe deference…to agency regulations if they construe a statute in a way that is contrary to congressional intent or that frustrates congressional policy.”

The court concluded that Congress did not directly speak to the issue of whether a person could lose V status by turning 21. The court found that the LIFE Act made clear that a person over the age of 21 was not eligible to receive a V visa but that the statute was silent regarding whether a person over the age of 21 who has been issued a V issue is able to continue to hold that visa. Thus, the court concluded that Congress’ intent was ambiguous.

The court noted that the LIFE Act provided three ways that V visa status may terminate and that aging-out was not one of those ways. Thus, applying the presumption that “when a statute designates certain . . . manners of operation, all omissions should be understood as exclusions,” the court concluded that “[s]ince Congress explicitly enumerated circumstances by which V Visa benefits are terminated, the presumption is that Congress purposely excluded all other possible means, such as aging-out.” The court further found that its conclusion was supported by: (1) statements in the congressional record regarding another LIFE Act provision (adjustment of status under INA § 245(i)); (2) “the general rule of construction that when the legislature enacts an ameliorative rule designed to forestall harsh results, the rule will be interpreted and applied in an ameliorative fashion;” (3) and the rule of lenity (in immigration cases, “doubts are to be resolved in favor of the alien.”).

Thus, the court invalidated the age-out provisions of the V Visa. Thus, your son can legally stay with you under the V Visa even though he will be older than 21 years of age. This is a significant victory for immigrants as it shows the power of the family unit and how Immigration cannot simply make arbitrary regulations.

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Where have my dreams have gone?

Posted on December 16, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I was just a little child when my parents came to the United States with my family. Our visas expired and I have been out of status for many years. I have done very well in high school and now want to attend college. Eventually, I want to become a doctor. However, at every turn is my illegal status. Unfortunately, colleges do not want to take me because I am here illegally. Now I have to work menial jobs and cannot realize my dreams of becoming a doctor and helping people. What can I do?

Answer: There may be a Bill in Congress that could soon become law. It is very much made for persons in your situation. Persons that are victims of the immigration laws and are stuck with nowhere to go. It is known as the DREAM Act. Last week it was in the Senate Judiciary Committee. By marking up and passing the DREAM Act (S. 1545), the Senate Judiciary Committee took an important step to remove one of the barriers that deserving children face in their quest to attend colleges and legalize their status in the United States.

The DREAM Act would return to the states the authority to determine who qualifies for in-state tuition. The bill also would legalize the status of those young people who meet certain criteria, including having good moral character and having lived in the U.S. for at least five years preceding the Act’s passage.

America benefits when all people have the opportunity to contribute to society and the economy. The DREAM Act will facilitate that opportunity for deserving kids, by removing some of the barriers to their attending college and gaining legal status. It not only makes economic sense, but it is the right thing to do.

Question: Did this Bill pass by a wide margin?

Answer: By a 16-3 vote, the Senate Judiciary Committee passed the DREAM Act (Development, Relief, and Education for Alien Minors Act of 2003), despite the strong efforts of restrictionists on and off Capitol Hill to defeat this measure. However, the bill passed only after the Committee approved a damaging amendment.

Question: Is the DREAM Act law?

Answer: No, not yet. Now it must go to the House to act on companion legislation, the Student Adjustment Act (H.R. 1684), introduced by Representatives Chris Cannon (R-UT), Howard Berman (D-CA), and Lucille Roybal-Allard (D-CA).

However, it does seem there is momentum for this Bill. Thus, we will see if it is passed. However, if you are in a situation where you need to have this type of legislation, help may soon be on its way.

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  • Brian D. Lerner

    Immigration Lawyer

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