I often meet with potential clients who are married to United States Citizens, and who are anxious and excited to finally be able to "get legal", as the talking heads scream from the airwaves for them to do. If the immigrant was admitted to the Untied States with a visa, he or she can generally apply for adjustment of status, and become a Lawful Permanent Resident. Likewise, if the immigrant came into the United States without a visa, he or she could still eventually adjust their status to permanent residence if an immigrant petition was filed on their behalf before April 30, 2001.
However, there is a third group of immigrants who are married to U.S. citizens: those who entered the United States without a visa and did not have an immigrant petition filed on their behalf prior to April 30, 2001. For these immigrants and their families, often the only route to legal status takes them out of the United States and to the U.S. consulate in their home country. Many families eagerly file the necessary paperwork to obtain an appointment at the appropriate U.S. consulate in order to get the desired immigrant visa. Tragically, many of these well-intentioned actions end in devastation for the family due to an unaccounted-for bar to immigration: unlawful presence.
The Immigration and Nationality Act has established a bar to admissibility for immigrants who have accrued a certain amount of "unlawful presence" in the United States. An immigrant who enters the United States without a visa begins to accrue unlawful presence from the date of the unlawful entry. Immigrants under the age of 18 do not accrue unlawful presence. However, the law currently states that an immigrant over the age of 18 who has accrued between 6 months to a year of unlawful presence in the United States, then leaves the United States, will face a 3 year bar, prohibiting the immigrant from receiving an immigrant visa. An immigrant who has accrued a year or more of unlawful presence in the United States following his 18th birthday, then departs the United States, faces a 10 year bar from receiving a visa.
The ironic effect of the law establishing the unlawful presence bar is that the bar from receiving a visa is not triggered until the immigrant set foot outside of the United States. Thus, well-meaning families who leave the United States, after accruing unlawful presence, fall into a cruel trap once they find out at the consulate interview abroad that the immigrant does not qualify for the visa. The immigrant is left abroad, and the family faces disintegration. If the desperate immigrant returns back to the United States, the situation becomes desperately worse: once the immigrant crosses back into the United States without permission, the immigrant becomes subject to an unwaivable unlawful presence bar.
The best way for immigrants and their spouses to address the issue of unlawful presnece is to be prepared and informed. The INA has established a waiver of the unlawful presence bar for immigrants who can demonstrate that the United States citizen or Lawful Permenant Resident spouse or parent would suffer extreme hardship if the immigrant is not permitted to return legally to the United States. The waiver decision is extremely law and fact-intensive; it is highly reccomended that anyone who will require a waiver speak with an immigration attorney experienced in consular processing and waiver matters.
The ultimate decision on whether or not to grant the waiver can be influenced by the office where the waiver is adjudicated. Some regions of the world, such as Mexico, have relatively speedy waiver adjudication programs. In other regions of the world, waiver applicants may wait months to over a year for a decision on the waiver application.
When a United States Citizen marries an immigrant, the new family must thoroughly analyze all of the potential consequences of beginning consular processing. Receiving a grant of the unlawful presence waiver is far from a sure thing; however, a well prepared and reasoned waiver application significantly improves the chances of winning the waiver for the immigrant.
However, there is a third group of immigrants who are married to U.S. citizens: those who entered the United States without a visa and did not have an immigrant petition filed on their behalf prior to April 30, 2001. For these immigrants and their families, often the only route to legal status takes them out of the United States and to the U.S. consulate in their home country. Many families eagerly file the necessary paperwork to obtain an appointment at the appropriate U.S. consulate in order to get the desired immigrant visa. Tragically, many of these well-intentioned actions end in devastation for the family due to an unaccounted-for bar to immigration: unlawful presence.
The Immigration and Nationality Act has established a bar to admissibility for immigrants who have accrued a certain amount of "unlawful presence" in the United States. An immigrant who enters the United States without a visa begins to accrue unlawful presence from the date of the unlawful entry. Immigrants under the age of 18 do not accrue unlawful presence. However, the law currently states that an immigrant over the age of 18 who has accrued between 6 months to a year of unlawful presence in the United States, then leaves the United States, will face a 3 year bar, prohibiting the immigrant from receiving an immigrant visa. An immigrant who has accrued a year or more of unlawful presence in the United States following his 18th birthday, then departs the United States, faces a 10 year bar from receiving a visa.
The ironic effect of the law establishing the unlawful presence bar is that the bar from receiving a visa is not triggered until the immigrant set foot outside of the United States. Thus, well-meaning families who leave the United States, after accruing unlawful presence, fall into a cruel trap once they find out at the consulate interview abroad that the immigrant does not qualify for the visa. The immigrant is left abroad, and the family faces disintegration. If the desperate immigrant returns back to the United States, the situation becomes desperately worse: once the immigrant crosses back into the United States without permission, the immigrant becomes subject to an unwaivable unlawful presence bar.
The best way for immigrants and their spouses to address the issue of unlawful presnece is to be prepared and informed. The INA has established a waiver of the unlawful presence bar for immigrants who can demonstrate that the United States citizen or Lawful Permenant Resident spouse or parent would suffer extreme hardship if the immigrant is not permitted to return legally to the United States. The waiver decision is extremely law and fact-intensive; it is highly reccomended that anyone who will require a waiver speak with an immigration attorney experienced in consular processing and waiver matters.
The ultimate decision on whether or not to grant the waiver can be influenced by the office where the waiver is adjudicated. Some regions of the world, such as Mexico, have relatively speedy waiver adjudication programs. In other regions of the world, waiver applicants may wait months to over a year for a decision on the waiver application.
When a United States Citizen marries an immigrant, the new family must thoroughly analyze all of the potential consequences of beginning consular processing. Receiving a grant of the unlawful presence waiver is far from a sure thing; however, a well prepared and reasoned waiver application significantly improves the chances of winning the waiver for the immigrant.
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