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Returning to the US As An Immigrant After Unlawful Presence

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I have previously written on the possibility of returning to the U.S. as a visitor or in other nonimmigrant visa (N.I.V.) status after unlawful presence. http:///www.huffingtonpost.com/aggie-r-hoffman/return-to-the-us-after-im_b_1090054.html . Returning with an immigrant visa (I.V.) involves a different and more challenging process.

While a person seeking to return for a temporary stay may apply based on his/her own merits, returning as an immigrant after violations of law is linked to hardship to family members. Unlawful presence is the most common obstacle faced by intending immigrants. The most frequent violations of lawful status include (1) entry without inspection (E.W.I.), (2) overstaying the terms of a visa, or (3) violating the terms of the visa by engaging in unauthorized employment. The immediate penalty for these violations is disqualification to change status to another visa or to process the I.V. (residence / green card) by adjusting status in the U.S. This means that the applicant must leave the U.S. and process the I.V. through the U.S. consulate aboard. However, by complying with the law to leave the U.S., a new penalty is triggered: Inadmissibility.

It is a catch 22. A person unlawfully present in the U.S. for 6 months or more may not return for 3 years. One violating status for one year or more, may not return for 10 years. This applies even to one who has close family relatives in the U.S. and is processing the I.V. to join them. Limited exceptions include minors, applicants for political asylum, battered spouses and elderly, as well as victims of crimes in T, U, and V visas status.

Another exempt group includes those on whose behalf either a qualifying family relative or employer has filed an immigrant visa petition on or before April 30, 2001; this exception is found in section 245(i) of Immigration and Nationality Act and is commonly referred to as the 245(i) benefit. However, even under this circumstance, a fine of $1,000 must be paid AND evidence must be provided of physical presence in the U.S. on December 21, 2000, when 245(i) was enacted. Moreover, the protection has been voided by many courts if during the pendency of the immigration process, the applicant leaves the U.S. and reenters E.W.I. This occurs often because in many cases the applicant is waiting for an I.V. to become available under the quota system. As the wait is usually years long, many people do leave because of family emergencies or deaths in their home country.

There are two possible resolutions to inadmissibility, depending on whether the person is simply outside the U.S., voided his 245(i) eligibility, or is in removal proceedings before an Immigration Judge (IJ).

Those outside the U.S. or without 245(i) protection may file for a waiver of inadmissibility (like a pardon) with the U.S. Citizenship and Immigration Services (USCIS) based on "extreme hardship." The hardship must be to a U.S. citizen or resident spouse or parent. Notice that it may not be based on hardship to the applicant or to U.S. citizen children, although arguably, the hardship to the children may increase the hardship to the US citizen or resident spouse or even parent. The complexity of the hardship issue is one that must be reserved for a separate article because it often requires testimony by expert medical and psychological witnesses.

The standards for obtaining relief to unlawful presence before the IJ are different. Relief may be requested in the form of Cancellation of Removal (cancellation). This request must be supported by evidence of "exceptional and extremely unusual hardship" to U.S. citizen children, U.S. citizen or resident spouse or parent. Again, harm to the applicant himself is not a factor. Notice also that the requirement is higher than the "extreme hardship" mentioned above. The difficulty is that neither of these terms is defined in the law and the grant for relief is discretionary.

In general, to receive cancellation, evidence must demonstrate (1) continuous physical presence in the U.S. for 10 years before the Notice to Appear in court is issued, (2) good moral character, (3) absence of conviction of certain crimes, including an aggravated felony, crime of violence, and drug and terrorist related offenses, and (4) exceptional and extremely unusual hardship, as mentioned above. See, http://www.justice.gov/eoir/eoirforms/eoir42b.pdf for more detail and some exceptions.

The first two requirements are usually easily established. Item 3 is either simple or complex depending on the details of the conviction. The term "aggravated felony" alone has been the subject of many federal court interpretations. And of course, requirement 4 is difficult and often must depend on extensive evidence, including expert testimony.

Once again, it should be clear that there is almost nothing simple about immigration law. The evaluation, advice, and participation of an experienced immigration attorney is often the only key to finding a way out of the maze of statutes, regulations, government policy directives and court interpretations to support a request for relief.

Content concerning legal matters is for informational purposes only, and should not be relied upon in making legal decisions or assessing your legal risks. Always consult a licensed attorney in the appropriate jurisdiction before taking any course of action that may affect your legal rights.