Not Sure to Marry My Fiancee Before or After Naturalization. Help!

Posted in Extension of Status, Naturalization, Nonimmigrant Visas with tags , , , , on August 13, 2014 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

[The following paid consultation question is taken from the Guru’s past client files.]

I am a permanent resident and am going to apply for a US citizenship within a week. My fiancee from Mexico and I are talking about our marriage this year. But I wonder whether we should get married before or after I convert my nationality to a US citizen. Is it better to get married before my naturalization? She came here with a B1/B2 visa with I-94 four months ago and has to renew her I-94 every 6 months to stay in California.  I’ve sent you separately details about my naturalization case.

Answer:

First of all, someone with a B-1/B-2 tourist visa can only request one extension to stay here for an additional six months, it’s not something to renew every six months (a person simply can’t be a tourist for years and years in the US).  Also, your fiancee must have good reasons why she wants to stay here longer as a tourist before the extension will be granted.  As long as she files for extension before the date her current stay expires on her I-94 (which should be in about two months), she will be allowed to stay here pending a decision on the extension.  Since you’re here in the Los Angeles area, it’s currently taking California Service Center about 2 ½ months on average to reach a decision.

As far as timing of the marriage, you can do it before or after your naturalization has been approved based on the information you’ve shared.  It should be after her tourist extension application (Form I-539) has been filed, to prevent USCIS from denying the extension on the grounds that she has a husband who has a green card and so she’ll likely have immigrant intent to stay permanently in the US.  If you do that and file an I-130 for your wife immediately, still before your naturalization case is approved, there will be no visa number available for a few years for her because the I-130 will be under the F2A category, which has only a limited number of visas each year.  Filing the I-130 for her will only be a preliminary step; she still would have to wait a few years before being eligible for a green card.  That would be the situation if you don’t become a citizen quickly enough.  However, as soon as you become a citizen, the I-130 is automatically converted to that for an immediate relative and she’ll be able to file for green card right away if she’s still in the US.  From what you sent me before, your naturalization case (Form N-400) will probably be approved within about five months from now here in L.A. since it looks pretty routine.  You don’t seem to have difficult issues such as criminal arrests or convictions, or other issues that could drag the case out for more than the expected time until approval.  So, yes, under these circumstances, you can marry after her own I-539 is filed and file an I-130 for her because five months from now, it appears fairly certain you will become a US citizen (Note:  this is an average time as currently being reported by USCIS, each case may take slightly longer or shorter).

You also asked what if for some reason your citizenship is delayed and takes a lot longer to be approved, say a year and half from now.  In that case, your wife, even after receiving an extension of her tourist status for six months, may be running up against the end of her allowed stay while your own case is still waiting for a decision.  However, she could stay here and even be out of status and wait for a favorable decision on your case, then file for green card.  Is there a risk for her being out of status?  Yes, but there’s only a slight risk since immigration officials are not likely, during current immigration climate, to send notice of deportation proceedings to her for being only a short time out of status.

You can, of course, delay the marriage until after your naturalization is approved.  That would seem to be about five months from now, as stated above, if your case is smooth.  But even if it’s not smooth, and takes a year and half to get approved, and assuming she will even be out of status, you could still marry her after your naturalization has been approved, and she’ll be able to get her green card here.

Best,

Larry L. Doan, Esq.

GuruImmigration

Copyright © 2014 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

Can My Out of Status Boyfriend Get H4 Status Through Me?

Posted in Adjustment of Status, H-1B, Nonimmigrant Visas, Unlawful Presence Bar (3- or 10-yr bar) with tags , , , , , on August 3, 2014 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

[The following paid consultation question is taken from the Guru’s past client files.]

Hi GuruImmigration, I am currently an H1B visa holder. I want to marry my boyfriend who’s tourist visa expired in September 2012 (so he’s out of status). My company just informed us that in October 2014, they would petition us if we want to. My question is, If I marry him now, can he adjust his status to H4? If not, once my employer applies for my greencard, can he adjust his status and receive his greencard when I get mine?

Please help!

Answer:

Normally, spouses of H-1B visa holders receive H-4 status.  However, because your boyfriend’s already out of status, he cannot “change status” from tourist visa to the H-4 visa while still in the US after he married you (it’s not “adjust status” because that term is only for going to green card).  He must go back home to try to receive the H-4 visa at the U.S. consulate.  This is why remaining in-status is so important.

The problem is, because he’s been out of status for more than a year by now, he will get the 10-year bar as soon as he leaves the US and tries to apply for admission as an H-4 at the consulate.  The bar means he cannot be admitted back to the US for 10 years from date of departure.  Unfortunately there will be no waiver possible for this, which is only possible if extreme hardship can be shown to a spouse or parent who is a US citizen or legal permanent resident (LPR or green-card holder) when he is denied the H-4.  In this case, you are neither a citizen nor LPR, so no waiver is possible (assuming he doesn’t have a parent who’s a citizen or LPR).

If you manage to receive the green card through your employer in the future, then your future husband will also not be able to adjust status by being a dependent on your case because he’s been out of status for so long.  He’ll have to go home and try to apply for permanent residence there.  However, the 10-year bar will also apply if he leaves the US.  The only difference then will be that you will be an LPR, so the two of you will have to prove that you’ll experience extreme hardship if he is denied the visa to immigrate (due to family separation and other factors). It will be a hard case, but not impossible, and will require attorney assistance.

Follow-up question:

How about this statement I found on another site:

“The dependent spouse and child of an employment-based beneficiary are considered derivative beneficiaries. They are therefore eligible for lawful permanent residence under the same employment-based preference category as the principal beneficiary.”

Follow-up answer:

Yes, that statement would indeed be true when the derivatives are in-status. If the derivatives are out of status while in the US, they cannot adjust when it’s employment-based unless it’s only 180 days or less out of status. Unfortunately, your boyfriend has been out of status for more than a year.

Best,

Larry L. Doan, Esq.

GuruImmigration

Copyright © 2014 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

H-1B Priority Date Transfer with New Employer

Posted in H-1B, Nonimmigrant Visas with tags , , , on July 26, 2014 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

[The following paid consultation question is taken from the Guru’s past client files.]

Dear GuruImmigration,

My current employer has filed my green card under EB3 category…i recently got I-140 approval a month back and I have NOT filed my I-485 as I am still waiting on my priority date to be current….

Now the question I have is: If I change my employer, can I use this priority date with my future employer?

If yes

can I use this priority date with my future employer for EB2 category as I already have more than 5 years of experience?

I am software professional and I have will remain in same industry even though I change the employer.

sincerely appreciate your response..

Answer:

This is an interesting question. The same I-140 can be used, or “ported,” when you change employer as long as the I-485 has been pending for 180 days or more, and the new job is in the same or similar occupational classification as the job in the I-140 petition. So, after you are allowed to file the I-485 (when priority date is current) and it has been pending for 180 days or more, then the same I-140 can be used with the same priority date. However, USCIS may view the attempt to upgrade the same job position from EB-3 in the I-140 to EB-2 as not being the same or similar classification (EB-2 requires Master’s degree or number of years equivalent). That is, an entry level position in a particular field may or may not be considered similar occupational classification as a supervisory-level position in the same field. It really depends on analyzing the described job duties of the two positions before a more informed opinion could be given.

Best,

Larry L. Doan, Esq.

GuruImmigration

Copyright © 2014 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

J-1 Out-of-Status and Happily Pregnant

Posted in Adjustment of Status, Lawful Permanent Residence, Nonimmigrant Visas with tags , , , on July 22, 2014 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

This summer the Blog will be updated frequently with the popular question/answer feature, composed of actual and recent consultation questions taken from the Guru’s file and his answers.

Dear GuruImmigration,

I have a J1 visa for 3 more years but the contract i came for its already expired, its been 1 years after that.

I just got pregnant and our marriage plans are going to be much sooner now.

We dont have insurance now and im not working so we were thinking i could get insurance from him after marriage.

And if not maybe get all our papers done so we could go to my native country and i could give birth there.

We really dont know exactly what to do, any idea? Thanks a lot.

Answer:

First of all, congratulations for your pregnancy! If you were not on the J-1, then you could marry your US citizen fiancé (assuming he’s a US citizen), and adjust status to a green card while remaining here. Unfortunately, as you probably know (or should know), most J-1 visas have the two-year foreign residency requirement preventing them from applying for a green card until they go back and live in their country for at least two years. You would have to check the J-1 program that sponsored you and see if the requirement applies to you.

Assuming it does apply to you, you would have to apply for a waiver to waive this requirement. The waiver can be obtained through a few ways, including showing extreme hardship to your US citizen spouse and child if you were forced to live apart from them. It’s not easy to get, however, and realistically, usually only succeeds with help of an immigration lawyer. I recommend you consult with one.

As for your health insurance, as far as I know, a spouse is covered on his/her spouse’s health insurance if the premium is paid, regardless of their legal status in this country.

Best,

Larry L. Doan, Esq.

GuruImmigration

Copyright © 2014 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

Top 10 Reasons Why Immigrants Get Visas Denied – 2013 Update

Posted in Grounds of Inadmissibility, Immigrant Visas, Removal (Deportation) Proceedings, Unlawful Presence Bar (3- or 10-yr bar) with tags , , , , on August 20, 2013 by GuruImmigration

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Note:  The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

Although it was with data from four years ago, the article compiling the main reasons why applicants were denied their visa applications by U.S. immigration authorities has been one of the most popular articles on our blog.  Now, 2012 data are available, which is the latest complete year available, and so it’s time to update that article.

These reasons for visa denial are known as “grounds of inadmissibility” or “inadmissible grounds.”  As in the previous article, the lists here only contain data of those applicants who tried to apply for immigrant visas last year to the U.S., that is, to immigrate permanently here.  Data for nonimmigrant visas (temporary visas) are available; however, the criteria for overcoming the inadmissible grounds can be quite different with nonimmigrant visas, so they are not covered here.

As before, the first table includes the total number of applicants denied last year, as well as the percentage who were denied. In other words, out of the total number of applicants faced with a certain ground of inadmissibility, such as for example, misrepresentation, the percentage given represents those who were notified by immigration authorities they had that ground for visa refusal as an obstacle, then tried to apply for a waiver or exception to overcome that ground but failed.  Obviously then, 100 – %denied represents the percentage of those who successfully overcame that particular ground.

For a background description of these inadmissible grounds in greater details, please see our previous article, “Top 10 Reasons Why Immigrants Get Visas Denied.

Table 1. Top 10 grounds of inadmissibility for FY 2012 under the Immigration and Nationality Act, ranked by total number of visa applicants denied (percentage denied)

1. Application does not comply with provisions of law or regulations – 105,677  (35%)
2. Labor certification – 10,000 – (88%)
3. Unlawfully present 365 days or more (10-year bar) – 5,851  (21%)
4. Misrepresentation – 5,699  (77%)
5. Unlawfully present after previous immigration violations –2,964  (100%)
6. Smugglers – 2,210  (60.8%)
7. Drug abuser or addict – 1,523  (100%)
8. Ordered removed/departed while removal order outstanding – 1,175  (61.4%)
9. Crime involving moral turpitude  – 1,003  (75%)
10. Falsely claiming citizenship – 687  (100%)

So, what has changed from our previous list for 2008? First of all, it is extremely noteworthy that for ground no. 3, unlawfully present 365 days or more, otherwise known as the 10-year bar, only 21% of applicants were denied in 2012 as compared to 46% in 2008.  This is a very significant decrease as it shows many more applicants successful with the waiver of this bar in 2012 than in 2008.  In fact, it was the least difficult ground to overcome in 2012 among the top 10, as seen in Table 2 below.  I’m not exactly sure why, except that maybe (a strong ‘maybe’ actually) USCIS has relaxed the standards for approving the waiver of this bar since 2008.  Legally, the waiver requires extreme hardship to the applicant’s citizen or permanent resident spouse or parent, before it could be approved.  However what exactly is “extreme hardship” could indeed be flexible.  See here.  Or, it could be as we discussed in the prior article, the lower percentage of denial means that applicants in 2012 who knew ahead of time they were faced with the 10-year bar also knew they had stronger cases of extreme hardship to begin with than applicants in 2008.  Stronger hardships in an applicant’s circumstances tend to increase the chance that the waiver for this bar would be approved.  However, it isn’t possible to draw a firm conclusion as to any longterm trend due to the fact that the percentage of denial in 2010 was actually an amazingly low 15% while in 2011 it went back up to 36% and back down to 21% for 2012.

Note:  For certain applicants who are immediate relatives and who are already in the U.S., a new “provisional waiver” has been available since March 4, 2013, where the applicant can apply for the waiver here rather than being forced to apply for the waiver only in their home country.  I will write more about this new waiver soon.  It will be interesting to see the impact of this new waiver process on the percentage of denial in the 2013 data, which will be available next year.

Another interesting observation about the 2012 list is that in terms of rank, the top four reasons for visa denial still remain the same.  While the percentages of denial for grounds no. 1 (does not comply with provisions of law or regulations) and no. 4 (misrepresentation) remain fairly constant, the percentage of denial for ground no. 2 (labor certification) has also decreased somewhat by 9%.

A surprise is how the percentage of denial for smugglers (no. 6) was only 60.8% in 2012 as opposed to 92% in 2008.  Although the total number of applicants denied on this ground in 2012 was twice that in 2008, the total number of applicants who were faced with this ground in 2012 was actually more than three times that in 2008.  Thus, it appears that the standard for approving the smuggling waiver might have also been relaxed.

Also, two new grounds made the top 10 list for 2012 but did not in 2008:  ordered removed/departed while removal order outstanding (no. 8) and false claim of citizenship (no. 10).  The first has to do with those applicants who were ordered deported or removed from the U.S. at some time in the past, who then departed, and later applied for an immigrant visa within 10 years from the date of departure (or 20 years for those with more than one order of removal or for aggravated felons).  There is a type of waiver available for these applicants where the Attorney General has to consent to the applicant’s applying for a visa sooner than the 10 years (or 20 years).  Even so, 38.6% of these applicants successfully overcame this ground.  As for those who falsely claimed U.S. citizenship in the past, it’s not surprising that this is an unforgiveable mistake.

Table 1 ranks the top 10 reasons for visa denial in terms of number of applicants.  In terms of percentage, the ranking goes like this from the most difficult to overcome to the easiest:

Table 2. Top 10 most difficult grounds of inadmissibility to overcome under the Immigration and Nationality Act for FY 2012, ranked by percentage denied

1. Unlawfully present after previous immigration violations – 100% denial*
2. Drug abuser or addict – 100%*
3. Falsely claiming citizenship – 100%*
4. Labor certification – 88%
5. Misrepresentation – 77%
6. Crime involving moral turpitude (CIMT) – 75%
7. Ordered removed/departed while removal order outstanding – 61.4%
8. Smugglers – 60.8%
9. Application does not comply with provisions of law or regs – 35%
10. Unlawfully present 365 days or more (10-year bar) – 21%

* Ranked by total number of applicants denied since these are all 100% denial

Copyright © 2013 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

How Do I Get a Work Permit?

Posted in work permit with tags , , , , , on December 26, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

The work permit, or employment authorization document, is a document issued by U.S. Citizenship & Immigration Services (USCIS), usually with a validity of one year, and renewable.  It allows the holder to legally work at any job, and it is also the document needed to get a social security number and a driver’s license.  So, how and when can an immigrant get one?

At the outset, it must be stated that:  a work permit is not something that is applied for as an end in itself, but only as an incidental, or side, benefit accompanying a main immigration application that results in the benefit of permanent residence, and only when the immigrant initially appears to qualify to apply for that main application. Sometimes, a potential client will ask us, “I don’t have any immigration papers but I just want to apply for a work permit. Can you help me?” We’d have to politely explain to this person that there is no such thing as “just applying” for a work permit. You must first see if you qualify for some larger main immigration benefit and apply for that benefit before you could get a temporary work permit.

Most immigrants receive a work permit shortly after their main application for “adjustment of status” to permanent residence is filed with USCIS.  This is the application that will allow an immigrant already in the U.S. to receive the benefit of permanent residence (green card).  However, not every intending immigrant in the U.S. qualifies to file for adjustment of status.  There are requirements of who can and when. At the time of filing the adjustment application, the immigrant will either be in-status on some kind of temporary nonimmigrant visa, or out-of-status on that visa or illegal but qualifies under immigration rules to file for adjustment.  Since the adjustment application will take four months to a year or more for USCIS to schedule an interview and to decide the case, the person is given the side benefit of a work permit so that they can work and take care of themselves in this country while the adjustment application is pending.  The law recognizes in this kind of situation that the immigrant must be given a means to legally work and not just sit there doing nothing.  Therefore, a separate application for the work permit, the I-765, is filed with USCIS at the same time the main adjustment of status application is filed.

The work permit card is then usually mailed to the immigrant about a month and half to three months after the applications are filed.  This card can be taken to the Social Security Administration office to apply for a new social security number and to the local DMV to apply for a driver’s license. If the adjustment application is ultimately denied — there are numerous grounds on which the immigrant may be denied, or is “inadmissible” to the U.S. — the work permit will also be terminated.  If the adjustment application is ultimately approved, then the person’s status becomes a permanent resident or green-card holder, and there will be no need for employment authorization since a green-card holder is entitled to live and work permanently in the U.S.

We stated above regarding the main immigration-benefit application that the immigrant must “initially appear to qualify to apply for that main application.”  What this means is that, for example, with an adjustment application, the immigrant must upon initial review appear to qualify to file for adjustment of status.  Examples?  Well, someone who is still waiting in what we call Stage 2 (has an approved I-130 or I-140 petition, but who is still waiting for a visa number because their priority date is not current yet), is not qualified to file for adjustment yet.  Or, someone who is not classified as an immediate relative, but whose visa is out of status, generally will not qualify to file for adjustment. There are other examples.  A person like this who applies for adjustment of status will have the application quickly rejected after USCIS personnel has done an initial review of the application package, and so no work permit is given.

So, to obtain a work permit, you must be at the point where you are now qualified to file for some type of application resulting in permanent residence.  U.S. immigration law provides many methods for immigrants to receive a green card since there are so many types of immigrants and circumstances (although as a practical matter only a handful of methods are used for the vast majority of immigrants). Some intending immigrants simply do not qualify under any method for a green card due to their being either out of status on their visa, being illegal in this country, or simply do not have enough time or have the right relationship to qualify. We routinely consult with people who, unfortunately leave the consultation with no solution under current law. Such a person cannot get a work permit.

Many immigrants whom we have helped are familiar with receiving their work permits not through the adjustment of status application but through a political asylum application. Political asylum is another type of immigration application eventually leading to permanent residence which gives a work permit as a side benefit. A grant of the asylum application will allow the person to remain (and work) permanently in the U.S. and then apply for permanent residence a year afterward. Under the law, a work permit must be given to the asylum applicant within 90 days. Thus, it was and still is a fast way to obtain a work permit in this country: to just apply for political asylum even if the person came to the U.S. illegally. However, asylum requires that the person must have experienced and does fear genuine persecution in their homeland due to their race, religion, nationality, political opinion, or being a member of a distinctive social group, and the persecution is a genuine verifiable reality in that country. People from countries that are stable or peaceful do not normally qualify for asylum. Yet, many people, such as from Mexico (a country in which the government is not persecuting its citizens for the most part), have been deceived in the past by unscrupulous immigration services, “notarios,” and sometimes lawyers, who promised they could obtain work permits quickly for them, but who did not tell these people that they were applying for political asylum on their behalf. Since the asylum application can take years to be decided by USCIS – sometimes 10 years – the applicant gets a renewed work permit every year and thinks that their immigration status in this country must be legal. Eventually, at the asylum interview, however, these people inevitably cannot prove their asylum case as described in their own asylum applications (many did not even read before signing what was in their applications), and so their asylum case is denied. USCIS then puts these people into removal (deportation) proceedings without exception.

There are other less well-known types of immigration applications for certain groups of immigrants, such as NACARA, TPS, cancellation of removal, application for deferred action, etc., that also allow the applicant to receive a work permit as a side benefit. Some of these, such as TPS (temporary protected status) and deferred action, in fact, do not necessarily lead to permanent residence for the applicant but do involve giving him or her a longer term of stay in the U.S. that does not end on a definite date in the immediate future. These applications are more specialized and are beyond the scope of this article.

It must also be pointed out that there are certain people here on nonimmigrant visas who do work for U.S. companies.  For example, H-1, or L-1 visa holders.  However, the difference between these people and someone with a work permit is that the person with the work permit can work for any employer and can change to a new job anytime, whereas the person with the H-1 or L-1 visa can only work for that particular employer who petitioned for them on their nonimmigrant visa.  If the visa-holder wishes to work for another employer, they have to go through the process of finding a new employer to file a new petition for them in that visa category.

Copyright © 2009-2012 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

Is the 10-Year Bar for Real and Could It Stop Me from Getting My Green Card?

Posted in Immigrant Visas, Lawful Permanent Residence, Naturalization, Removal (Deportation) Proceedings, Voluntary Departure, work permit with tags , , , , , , , , , on September 24, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

Many people have written us skeptical or not sure of the danger of the 3- and 10-year bars. Admittedly, these bars seem somewhat abstract or theoretical, and it can be difficult to grasp how they could affect oneself. Some people have asked how is it that people who are already in the U.S. “cannot get their papers here.” Well, that’s the way the law currently is. It was passed in 1996 as a way of penalizing people who came here illegally or who came legally but overstayed their visas for at least 6 months. The penalty was that these people could not get their papers here but must travel back to their home countries to do so. However, as soon as they set foot outside the U.S., they are subjected to these bars when they try to apply legally to return to the U.S. within 3 or 10 years.

With that in mind, it was quite nice that a reader of this blog recently commented and shared her experience with the 10-year bar. Her story was quite sobering, and we thought it has a little bit of everything that we’ve been blogging about, so we wanted to share it with you to show how this bar could wreak havoc on people’s dreams of living in the U.S. We’ve edited some of the original language to make it easier to read:

Hi Guru,
I came to USA on a tourist Visa in 1994 July. Got married to a green-card holder then in 1997 October. My husband applied I-130 for me in October 1997 and it was approved. I went with a friend of mine to the immigration in 1998 and I was inquiring for employment authorization and that’s where I was caught. I was released couple of hours later and reported to them every month. Appeared before the judge in Sept. 1998 and granted voluntary departure. The judge gave me 120 days which will expire on December 31, 1998. I was waiting for my husband’s swear in coz he had his citizenship interview. Since it did not take place in time I had to leave USA on 30th December 1998. I did not overstay the 120 days given by the judge.

OK, this lady had an I-130 petition filed for her by her green-card holder husband in 1997, then went to the Immigration Office to try to apply for an employment authorization document (EAD, or work permit) and got caught. Why? Doesn’t having an approved I-130 entitle you to a work permit?

The answer is most of the times no, not at all. When the husband filed the I-130 in 1997 for her, that placed her into the F2A category of spouses and children of green-card holders. At that time in 1997, people in that category had to wait something like 4 years for a visa number to be available. However, as we’ve shown elsewhere, without a visa number available, one cannot get a work permit. So, in 1998, when she went to the local Immigration office to inquire (and most likely apply) for the work permit, she was not entitled to one yet. At that time, we know she was out of status because it had been 4 years since she came to the U.S. on the tourist visa (in July 1994) and no tourist visa lasts 4 years. The act of going to the Immigration office made them aware of her presence in this country as being out-of-status. Therefore, they detained and released her but ordered her to appear in front of a judge in removal proceedings!

This shows that people who are out-of-status in the U.S. should proceed extremely carefully when trying to apply for something with Immigration here without consulting a lawyer. The lady here presumably did not do so, or got bad advice that she could qualify for a work permit, and made the mistake of applying for it. That’s how Immigration discovered that she had overstayed her tourist visa by 3 or 4 years.

What about the husband becoming a citizen, wasn’t that supposed to help her? Well, no, not unless he was approved for naturalization and was sworn in on time. In removal proceedings, the judge only gives the alien a couple of continuances at most, a good lawyer could get even more. If, after the continuances, the alien still does not have any form of relief available, then the judge cannot keep delaying the case and either will order removal or allow the alien the privilege of voluntary departure. Voluntary departure allows the person to leave the U.S. cleanly without having a removal or deportation against them on their records, and the maximum time given is 120 days to leave. IF the husband had been sworn in as a citizen in time while the lady was still in removal proceedings, then she would have converted from the F2A category to the immediate relative category, and a visa number would have been immediately available to her. Then she could have applied to the judge for her green card without having to leave the U.S.!

But, unfortunately, as she stated, “I was waiting for my husband’s swear in coz he had his citizenship interview. Since it did not take place in time, I had to leave USA on 30th December 1998.” So, because her husband did not become a citizen quickly enough, she indeed had to leave the U.S. within the 120-day period granted by the judge.

Her story then continues:

I went back to Malaysia and remained there since January 1st 1999. In May 1999 my husband became us citizen and he applied for immigrant visa for me and I had the interview on May 2000 and was denied because of overstay and it was a 10 year bar. I appealed and was rejected the I-601. The 10 year bar starts from the day I left USA. I left on 30th December 1998 and i have already completed the 10 year which is 30th December 2008.

So, back in Malaysia, after her husband had become a U.S. citizen, a visa number immediately became available for her. She naturally then tried to apply for the immigrant visa to return permanently to the U.S. She first was denied her visa due to the consulate’s finding that she overstayed previously by about 4 years on her prior tourist visa. Then, she filed the I-601 to try to apply for the extreme hardship waiver. However, this was also denied. Because of this, she could not get back to the U.S. legally, and had to wait 10 years from the date she left the U.S. before she could apply again! How could this happen, you might ask, since she got voluntary departure?

Well, voluntary departure at least prevented a removal order from being on her records, which would have been worse. However, the truth of the matter is that, receiving a grant of voluntary departure while in removal proceedings in court did nothing to erase the more than one year of unlawful presence that she had accumulated in the U.S. before starting her court proceedings. Thus, she became subjected to the 10-year bar as soon as she stepped foot outside the U.S. That’s how strict this bar is. The timing was particularly unlucky because not long after she left the U.S. on December 30, 1998, her husband became a citizen, and she became qualified for a visa to return to the U.S. But, unfortunately, at the consulate interview in Malaysia, the bar was invoked against her, as you can see, and so she had to wait 10 long years until December 30, 2008 to reapply.

Note: Some people are under the mistaken impression that this 10-year bar is only applicable if there was a removal (deportation) order against them. Not true! This 10-year penalty for being unlawfully present in the U.S. at least one year (either by overstaying one’s visa that long or being here illegally when one has no visa) kicks in no matter how one departs the U.S., even if it is voluntarily!

In any event, this lady’s heartfelt story above shows that there are real immigrants out there everyday who simply cannot “get their papers” here, but must return to their countries to do so. And, when they do that, they may be stuck in their countries for 10 years before being allowed to return, as happened with this lady. Having paid her dues, she is now in the process of reapplying again through her citizen husband, and should get approved easily this time since the 10 years have already passed with her being outside the United States. This is a real story. It is a story multiplied by thousands of times. For the sake of unification of families, let us hope that Congress will remove these bars from the law as soon as possible.

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Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

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