What is an ICE hold? (My loved one is detained for immigration.)
One of the most frequent calls I get is when a loved one is arrested and subsequently informed that they “have an ICE hold.” The legal term for an “ICE hold” is an immigration detainer. An immigration detainer is a formal request made by Immigration and Customs Enforcement (“ICE”) to the local law enforcement agency to continue the detention of the individual in question in order to allow ICE time to investigate that individual and potentially take him/her into ICE custody upon the conclusion of the local law enforcement custody. Local law enforcement agencies are under no legal obligation to continue the detention (and do so at their own expense), but most jurisdictions do comply with the immigration detainer as an act of comity. Immigration detainers are typically issued shortly after booking, when the individual’s fingerprints are transmitted to the FBI and to ICE by the local agency.
Immigration detainers are limited in important respects:
- The detainer does not impact the local court proceedings in any way. Some jurisdictions, however, will refuse to allow the individual to post a criminal bond if a detainer has been issued. This is legally erroneous–the immigration detainer has no impact on the right to post the criminal bond – but for practical purposes explained below it is usually beneficial.
- The detainer is limited in duration to 48 hours, not counting weekends or holidays. The text of the detainer itself instructs local law enforcement to not hold the individual more than 48 hours beyond the conclusion of the local agency’s legal custody of the individual. Many jurisdictions do not honor the 48-hour restriction on their own and have to be threatened with legal action to comply. If the detainee has been held more than 48 hours after the conclusion of local custody, it is time to make some noise. What constitutes the conclusion of local custody? Custody is concluded when the individual is no longer subject to confinement by local law enforcement pursuant to 1) payment of the criminal bond; 2) dropped charges; 3) conclusion of court proceedings (e.g., a court hearing where the sentence is only a fine, probation, or time served or where there is no finding of guilt); or 4) conclusion of the term of imprisonment (i.e., when the individual has completed the sentence imposed).
It is important to note that payment of the criminal bond concludes local confinement and thus starts the 48-hour detainer period. While this might seem a good thing (and in a very few situations it can be), payment of the criminal bond is usually ill-advised with negative consequences. Unless the criminal bond is paid and the individual released before the detainer is issued, the bond simply means that ICE will take the individual into ICE custody sooner rather than later. Because ICE detainees are not held in this area (they are almost all transported out of state the same day), the individual is no longer able to appear at local court hearings, comply with any criminal bond conditions, and worst of all, is no longer near the family for visitation or near the attorney for case preparation. Further, when the individual misses the local court hearing because ICE has removed him/her from the state, the criminal bond is forfeited or difficult to recover. As a rule, do not pay a criminal bond if there is an immigration detainer until you have consulted with an immigration lawyer and understand the consequences.
An immigration detainer can be lifted by ICE if it is demonstrated that the detainer has been issued in error (e.g., the individual is actually a U.S. citizen or not subject to deportation). However, if the individual is actually taken into ICE custody, ICE will transport the individual to the local ICE office for determination of the individual’s “alienage” (citizenship) and removability (deportability). ICE then has the option to exercise prosecutorial discretion (simply release the individual with no further action) or to initiate removal proceedings (begin the deportation process). If ICE initiates removal proceedings, they will issue a Notice to Appear (“NTA”) to the individual that explains the alleged grounds of removability and then make a custody determination.
ICE can decide to release the individual on recognizance (require no bond), can require the posting of an immigration bond, or can determine that it will not set a bond at all. Release on recognizance still requires the individual to appear at the immigration court hearing, the date for which will be later established. Should ICE set an arbitrarily high bond (which almost always happens–a first DUI offense typically results in an immigration bond of $10,000 or more) or if ICE refuses to set a bond, the individual can request a “bond redetermination hearing” by an immigration judge to possibly lower the bond or set a bond. The drawbacks of a bond redetermination hearing are that the hearing cannot be conducted until the individual reaches the federal detention facility in Oakdale, Louisiana, which can take several weeks, and that the legal fees incurred in conducting the redetermination hearing may consume any savings that might result. A quick release from ICE custody will require the payment of the bond amount initially set by ICE.
Regarding the immigration bond, bonds can be paid in two ways: 1) the full amount paid directly at an ICE field office (Memphis, Atlanta, Charlotte, Louisville) or 2) by using an immigration bond company. If paying the bond directly, the payment must be made by bank Cashier’s Check or U.S. Postal Money Order made payable to the “U.S. Department of Homeland Security.” An immigration bond company works like your typical criminal bond company in that the bond company agrees to post the bond in exchange for a percentage fee plus collateral. I am not aware of any local bond company that will issue an immigration bond; there are a handful of national immigration bond companies that will do so. Upon payment of the bond, ICE will release the individual from custody wherever the individual may be held at that time. ICE may require proof that travel arrangements have been made for the individual prior to his/her release.
Upon release from ICE custody, it is recommended that the individual meet with an immigration attorney as soon as possible in order to assess his/her legal situation and begin preparation for any defense to removal.
Can I sponsor someone to come to the U.S.?
I frequently am asked whether a U.S. citizen can “sponsor” someone to come to the United States, typically for a green card. Usually the individual is really asking, “If I agree to be financially responsible for someone, can I bring them to the U.S.?” The short answer is no, a U.S. citizen cannot bring a foreign national to the U.S. simply by agreeing to be financially responsible for them. The confusion comes from the word “sponsor” which has one very defined meaning in immigration law, but can broadly be used in several different contexts.
In the family immigration context, a “petitioner” (a U.S. citizen or lawful permanent resident) can apply to bring certain family members to the U.S. (See the Family Immigration page for more details). As a condition of issuing a visa to the family member, immigration law requires that the petitioner sign an Affidavit of Support. The Affidavit of Support is a contract with the U.S. government in which the petitioner agrees to ensure that the family member s/he is bringing to the U.S. will be financially maintained at a rate of at least 125% of the federal poverty line. The Affidavit of Support refers to the petitioner as the “sponsor.” If the petitioner is unable to meet the income requirements of the Affidavit of Support alone, s/he can seek a “joint sponsor” to also take on the financial maintenance obligation.
Thus, the financial maintenance obligation is not an independent option for bringing someone to the U.S., but merely one part of the family immigration process. Unless a qualifying family relationship exists, the mere willingness to be financially responsible for a foreign national is not a viable immigration strategy.
Sponsorship can also be used more broadly and less technically to mean “Can I apply to bring someone to the United States?” Used in this sense, an individual can sponsor a foreign national through either the family immigration or business immigration options if those requirements are met. You can read more on those options on the Services pages or the following common question, “How can I get a green card?”.
How can I get a green card?
A green card is the physical documentation (an actual card) that evidences the fact that a foreign national has been granted lawful permanent resident status in the United States. Lawful permanent residence means that an individual has been granted the right to live and work in the United States on a permanent basis and may eventually become eligible to apply to become a U.S. citizen.
There are a very few pathways to obtaining a U.S. green card / lawful permanent residence:
- Family immigration (spouses, parents, children, siblings);
- Business immigration;
- Significant financial investment in the U.S. ($500,000+);
- Diversity visa lottery;
- Refugee / Asylee protected status;
- Juveniles under the custody of the state;
- Cancellation of removal; and
- Victims of serious crimes committed in the U.S. (U visa).
These options are described in more detail in their respective Services pages. With few exceptions, an individual who does not fall into one of these categories is not eligible to receive a green card.
Green cards are typically issued with ten-year validity dates. In marriage and investment cases, a “conditional green card” may be issued for a two-year period of time, requiring the holder to “remove the conditions” in order to receive an unrestricted ten-year green card.
What is a visa (and how do I get one)?
A visa is the passport stamp that grants the holder permission to apply for entry to the U.S. at a U.S. port of entry. The information on the visa relates to when an individual may apply for entry into the U.S. and what type of activity s/he can engage in while here. Visa applications are made to U.S. Embassies and Consulates oversees. A visa does not guarantee the holder the right to enter the United States. The final decision regarding entry is made by the U.S. Customs and Border Protection which sets the length and conditions of stay in the U.S.
There are two types of visas: Immigrant Visas and Non-Immigrant Visas. An immigrant visa is a visa that allows someone to reside and work in the U.S. permanently as a lawful permanent resident. Immigrant visas are obtained in one of two ways: consular processing at a U.S. Embassy or Consulate for those outside of the U.S. and adjustment of status with the U.S. Citizenship & Immigration Services office for those inside the U.S. There are only a handful of ways to obtain lawful permanent residence in the U.S.; see the common question, “How Can I Get a Green Card?” for more information.
A non-immigrant visa allows someone to enter the U.S. for a temporary period of time and for a limited purpose. Unless subsequently changed or extended, a non-immigrant visa holder can only stay in the U.S. for the amount of time indicated on the passport stamp and I-94 card and can only perform activities that are appropriate for the visa classification under which s/he was admitted. There are many different types of non-immigrant visas. Common examples of non-immigrant visas are tourist/visitor visas, student visas, and H1-B employment visas. Some types of non-immigrant visa applications can be made directly to the U.S. Embassy, while others first require pre-approval by U.S. Citizenship and Immigration Services (USCIS).
One important note is that there is not a general “work” visa that an individual can apply for on his own behalf. There are specific employment visa categories relating to the type of work to be performed. Almost all employment visas require a job offer and the visa process initiated by the potential employer, with the exceptions being extremely highly-skilled and renowned individuals.