|
Illegal presence in the United States can affect a person’s
ability to obtain permanent residence in the United States, or
obtain an immigrant visa at a consulate or embassy abroad.
People who entered the United States lawfully on
a visa, but who are now here unlawfully because they overstayed that
visa, can obtain a green card without traveling to a foreign
country, obtaining a waiver, or paying a fine if they are the
spouse, minor child, or parent of an adult United States citizen or
are considered to be a special immigrant.
People unlawfully present in this country, who
do not fit within the above-referenced category, can also obtain a
green card if a family based visa petition or an employment based
labor certification was filed for them on or before April 30, 2001,
provided they pay a $1,000 fine.
However, all other people unlawfully present in
the United States will need to return to a consulate or embassy
abroad in order to obtain a green card. If those people have
remained in the US for an extended period illegally, they will be
required to be eligible for and be granted a waiver from the United
States Citizenship and Immigration Services (USCIS) before
reentering.
A person who has been residing in the United
States unlawfully for more than 180 days, but less than one year, is
barred from reentering the United States for a period of three years
unless they obtain a waiver, and if such a person has been residing
in the United States unlawfully for a year or more, they are barred
from reentering for ten years unless a waiver is obtained.
It is important to note that people who resided
unlawfully in the United States for a year or more and who departed
the United States, must continue to remain outside the United States
until a waiver is granted. If they depart the United States and
attempt to reenter or succeed in reentering the United States
illegally thereafter without obtaining a waiver first, they will no
longer be eligible for a green card or a waiver until they have
resided outside the United States for ten years.
The waiver for previous unlawful presence is
available only to those people who have a United States citizen or
lawful permanent resident spouse and/or a United States citizen or
lawful permanent resident parent. Furthermore, in order to be
eligible for the waiver, the applicant must establish that their
relatives will suffer extreme hardship if the applicant cannot
reenter the United States before the three or ten-year period has
passed.
It is very difficult to obtain a waiver from the
USCIS offices abroad because the government applies a narrow view of
what constitutes extreme hardship. But waivers are obtainable
through the help of an immigration attorney who is an expert in this
area of the law. This is no time to try a do-it-yourself waiver. The
consequences are far too severe.
Because of the difficulties associated with
drafting an approvable waiver and the possible ten-year wait outside
the United States that one will face, it is necessary for someone
with unlawful presence in the United States to consult with and
obtain the assistance of an immigration expert before applying for
an immigrant visa.
___
Author’s Note: The analysis and
suggestions offered in this column do not create a lawyer-client
relationship and are not a substitute for the individual legal
research and personalized representation that is essential to every
case.
|
