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Immigrant and Non-Immigrant Visas - Unlawful Presence and obtaining a visa

The process of immigrating to the United States can take years. If you are immigrating through a family member, it may be many years before you obtain lawful permanent resident ("green card") status in the United States. Just having a spouse who is a U.S. citizen does not mean that you have permission to remain in this country. Your spouse and you must be willing to file the correct paperwork with the INS.

Section 245(c) of the Immigration and Nationality Act says that adjustment of status in the United States is not available to an alien who "accepts unauthorized employment prior to filing an application for adjustment of status ... or who has failed ... to maintain continuously a lawful status since entry into the United States ..." This makes you statutorily ineligible for the process of "adjustment"; it means that you are ineligible to obtain your green card in the United States. But this is not a problem when you obtain your immigrant visa through a consular office outside the United States. The Consul applies a different set of laws and there is no problem with unauthorized employment when you obtain your visa through consular processing. Furthermore, the Immigration and Naturalization Service (INS) has the discretion whether or not to grant adjustment of status. On the other hand, the American consul must issue the visa unless he or she finds that you are disqualified.

Voluntary departure...what's that? If he can demonstrate good moral character pursuant to INA 101(f) in that he has never been convicted of, nor does he admit the commission of, any crime either of moral turpitude or relating to controlled substances; he has not been incarcerated for more than 180 days; he has not given false testimony to obtain immigration benefits; and he comes within no other statutory preclusion contained in INA 101(f). Another option might be: request voluntary departure so that he is not barred for 10 years from re-entry; file a K visa (fiancee visa) which is a consular visa.

The INA 212(a)(9)(B)(v) Waiver of the Ten-Year Bar of INA 212(a)(9)(B)(i)(II)

In 1996, Congress added two new grounds of inadmissibility that affect persons who have been "unlawfully present" in the United States for certain periods of time after April 1, 1997. Section 212(a)(9)(B)(i) of the INA subjects aliens to either a three- or ten-year bar to admission, depending on the period of unlawful presence in the United States. Specifically, 212(a)(9)(B)(i)(I) bars noncitizens who have been unlawfully present in the United States for more than 180 consecutive days and who voluntarily depart prior to commencement of proceedings from reentering the United States for three years, and 212(a)(9)(B)(i)(II) prohibits the admission for 10 years of any noncitizen who has been unlawfully present for a year or more consecutively and who has left or been removed from the United States.

According to the plain language of the statute, in order for the alien to be found inadmissible under 212(a)(9)(B)(i)(I) or (II) of the Act, the alien must have been unlawfully present in the United States for the specified period of time-either for more than 180 consecutive days but less than a year, or for a year or more consecutively. Secondly, the alien must have been removed, or have departed voluntarily from the United States. Lastly, the alien must be seeking admission into the United States within three or 10 years of the date of departure from the United States (depending on the relevant section of the INA under which he or she qualifies).

The Department of Justice has not promulgated any regulations regarding the 212(a)(9)(B) three- and ten-year bars to admissibility, but the INS has issued several memoranda and statements defining what it considers to be unlawful time, and unlawful statuses, for purposes of triggering these bars. The State Department has also issued detailed guidance to U.S. consular personnel abroad based on the various INS interpretations.

In addition to the new three- and ten-year bars to admissibility, Congress also created a corresponding waiver. The INS may grant a waiver of the applicable INA 212(a)(9)(B) bar to admissibility if the intending immigrant is the spouse or son or daughter of a U.S. citizen or lawful permanent resident, and if that qualifying relative will suffer extreme hardship if the intending immigrant is not admitted. Accordingly, in order to be eligible for the waiver, the alien must establish that refusal of an application for a visa, admission, or adjustment of status would result in "extreme hardship" to his or her U.S. citizen or lawful permanent resident spouse or parent.

Once the alien departs the United States and applies for a visa at a U.S. post abroad, the alien may file a waiver application, if eligible, after the consular officer has determined the applicable grounds of ineligibility.

However, as with the three- and ten-year bars to admissibility, regulations interpreting this new waiver do not yet exist. Accordingly, it has been left up to existing waiver regulations and case law to define the method of application and the term "extreme hardship." Fortunately, the term "extreme hardship" has been extensively discussed in Board of Immigration Appeals (BIA) decisions in relation to suspension of deportation proceedings. The BIA stated in Matter of L-O-G-, Int. Dec. 3281 (BIA 1996), that "a restrictive view of extreme hardship is not mandated either by the Supreme Court or by our published case law." The INS also recently defined the term in proposed regulations implementing portions of the Nicaraguan and Central American Relief Act (NACARA). The proposed rule lists various specific factors that an adjudicator may consider in evaluating "extreme hardship," many of which are based on existing BIA precedent decisions regarding suspension of deportation. Specifically, the Service has stated that the factors that may be considered in evaluating whether deportation would result in extreme hardship to the individual or to the individual's qualified relative include:

  • Age, number and immigration status of the individual's children and their ability to speak the native language and to adjust to life in the country of return;
  • Health condition of the individual's children, spouse, or parents, and the availability of any required medical treatment in the country to which the individual would be returned;
    Existence of other family members who are or will be legally residing in the United States;
  • Financial impact of the individual's departure;
  • Impact of a disruption of educational opportunities;
  • Psychological impact of the individual's departure;
  • Current political and economic conditions in the country to which the individual would be returned;
  • Family and other ties to the country to which the individual would be returned;
  • Contributions and ties to a community in the United States, including degree of integration into the society; and
  • Immigration history.
  • The Service reiterated that extreme hardship is determined on a case-by-case basis, taking into account the particular circumstances of the individual applicant, and that each case must be decided on its own merits.

The BIA has explained that "extreme hardship is not a definable term of fixed and inflexible meaning, and the elements to establish extreme hardship are dependent upon the facts and circumstances of each case." Matter of Chumpitazi, 16 I&N; Dec. 629 (BIA 1978); Matter of Hwang, 10 I&N; Dec. 468 (BIA 1964); Matter of Pilch, Int. Dec. 3298 (BIA 1996). In Matter of O-J-O-, Int. Dec. 3280 (BIA 1996), the BIA referred to a list of factors to be used in determining the issue of "extreme hardship." The list included: family ties in the United States and abroad; length of residence in the United States; condition of health; conditions in the country to which the alien is returnable-economic and political; financial status-business and occupation; the possibility of other means of adjustment of status; special assistance to the United States or community; immigration history; and position in the community. The BIA stated: "Although these factors provide a framework for analysis, the 'elements required to establish extreme hardship are dependent upon the facts and circumstances peculiar to each case.' Matter of Ige, 20 I&N; Dec. 880, 882 (BIA 1994). 'Relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.' Id. In each case, the trier of fact must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation, e.g., economic detriment due to loss of a job or efforts ordinarily required in relocating or adjusting to life in the native country. Such ordinary hardships, while not alone sufficient to constitute extreme hardship, are considered in the assessment of aggregate hardship."

In Matter of L-O-G-, supra, the BIA considered that the litany of factors, such as including the alien's age; the length of her residence in the United States; her family ties in the United States and abroad; her health; the economic and political conditions in the country to which she may be returned; her financial status, business, or occupation; the possibility of other means of adjustment of status, her immigration history; and her position in the community, which do not, by themselves, generally constitute extreme hardship, must be considered in proper context. Each case must be carefully evaluated, and all possible hardship factors must be weighed together. See, e.g., Turri v. INS, 997 F.2d 1306 (10th Cir.1993); Hernandez-Cordero v. INS, 819 F.2d 558, 563 (5th Cir.1987); Prapavat v. INS, 662 F.2d 561 (9th Cir.1981). A factor that may not in itself be determinative should be considered, and may become a significant or even critical factor when weighed with all the other circumstances presented. In all cases, the particular degree of personal hardship resulting from each of the factors must be taken into account.

In previous decisions in deportation cases, both the BIA and federal courts of appeal have required consideration of a greater breadth of factors. Matter of Anderson, supra, is the lead BIA decision defining extreme hardship for suspension of deportation purposes. According to this case, the factors to be used in determining whether an alien has established "extreme hardship" pursuant to section 212(i) of the Act include, but are not limited to, the following: the presence of lawful permanent resident or U.S. citizen family ties to this country; the qualifying relative's family ties outside the United States; the impact of separation; age, length of residence in this country; the financial, emotional, cultural, and political conditions in that country; the economic conditions in that country and the financial impact of departure from the United States; the qualifying relative's technical skills and employability; the ability to raise children and other quality of life factors in that country; the extent of the qualifying relative's ties to such country; and, finally, significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate. In other cases, additional factors combined with economic detriment in order to characterize hardship as "extreme," including length of time spent in the United States, return to a country where economic and political conditions were difficult, and the emotional hardship caused by severing family and community ties. Matter of Cervantez-Gonzales, Int. Dec. 3380 (BIA 1999); Matter of Ige, supra; Mejia-Carrillo v. United States, 656 F.2d 520 (9th Cir. 1981) (relating to consideration of noneconomic hardships resulting from removal); Ravancho v. INS, 658 F.2d 169 (3d Cir.1981) (relating to consideration of psychiatric information); Salameda v. INS, 70 F.3d 447 (7th Cir. 1995) (relating to need to consider separation from community ties); Matter of Piggott, 15 I&N; Dec. 129 (BIA 1974) (under physician's care, and "equal medical care not available").

"Well," you ask, "did I have to tell you the truth?" "But," you may ask, "what if I simply don't mention periods of authorized employment when I complete the forms?" In the first place, the forms for adjustment of status specifically ask you to list all of your employment for the past 5 years. If you deliberately misstate on one of those forms, and the immigration people subsequently find out that you lied, you have three problems. One problem is that they have 5 years within which to take your green card away and deport you. Section 246 of the Act says "If, at anytime within five years after the status of a person has been otherwise adjusted under the provisions of section 245 ... of this Act or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person if that occurred ..."

Another problem is that since you will have lied on the forms, you may be charged with "document fraud." Under 274C of the Act, this carries mandatory deportation from the United States. Section 274C makes it unlawful for a person "knowingly (1) to forge, counterfeit, alter, or falsely make any document for the purpose of satisfying a requirement of this Act." And 241(a)(3)(C) says, "Any alien who is the subject of a final order for violation of section 274C is deportable." And third, to make matters worse, to lie on federal forms in an effort to obtain an immigration benefit is a crime. Section 1001 of the federal criminal code says that, "Whoever ... makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned more than five years, or both." Anyone who assists you in doing that (even your lawyer) can also be sentenced to prison. I would not like to spend five years away from my family doing time in prison and I am sure you would not either. It is wonderful that there is a second chance available to those who deviate from the rules. That second chance is made available by consular processing-a process in which the consul assumes there has been unauthorized employment. The penalty you are paying is that you must make the visa application abroad-but there is no other penalty.

So you can see, it is incredibly dangerous thinking to take those risks. You can get your green card in the proper way, following the law, with no danger of losing it, with no danger of deportation and without risking going to the penitentiary. Doesn't it make sense, then to follow the law? The consul applies a completely different set of laws, as I have said, in considering whether to grant the immigrant visa to you. It is not at all the arbitrary system of nonimmigrant applications such as you have experienced in the past. The consul will not deny the visa so long as you have all the papers that are required (such as birth and marriage certificates, etc.) and so long as you are not in any of the "excludable classes."


When you apply for permanent immigration through employment, you are saying to the government that you intend to work for your employer for the foreseeable future. You are not bound to the company for the rest of your life, nor is the company obligated to provide you with lifetime employment. However, the government will look at your behavior to determine your intent. In other words, if you get your green card on Monday and on Tuesday you quit, the government may think that the job offer to you was not real. This can lead to the government investigating you, and, possibly, seeking to deport you.

The permanent resident process is almost completely petitioner-driven. That means that the person or company who petitions for you has control over your petition. You cannot force an employer or a relative to file on your behalf. Once a petition is filed, your employer or relative can withdraw or cancel your petition at any time before you get your permanent resident status.

All people who enter the United States on nonimmigrant visas are considered to be here temporarily. The law believes that they intend to return to their home countries at the end of their stay in the U.S. If you are here on a temporary nonimmigrant visa and you start the permanent resident process, the law generally believes that you have "lost" your intent to stay temporarily because you now wish to immigrate (i.e., stay permanently in the U.S.). Normally, if you remain inside the United States and do not need to renew your temporary visa, this change of intent is not a problem. However, if you must travel internationally or you must apply for an extension of your present stay, you could have problems.

There are a few nonimmigrant categories that allow a person to have dual intent, that is, to intend to be here temporarily now but eventually to immigrate. In these categories, international travel and extensions of stay are not a problem. However, these categories have limitations, which means that you have to do some planning. The most common dual-intent visas are the H, L, and E visas. E visas are available to citizens of certain countries with whom the United States has certain treaty agreements. There are many requirements for this visa and I will not discuss them here. However, if you own or are employed by a company owned by citizens of your country, please call me to see if this may be an option for you. There is no limit as to how long you can remain in the U.S. in E status, but you must renew that status about every two years.

L visas are available to employees of multinational companies who: (1) have specialized knowledge of the company; or (2) are executives or managers of the company. An individual can stay in the U.S. for a maximum of five years in the specialized knowledge category and a maximum of seven years in the executive or manager category. At the end of that stay, the person must leave the U.S. for one year before he or she can return on an L or H visa.

The most common dual-intent visa is an H visa. The H visa is available if you have a U.S. bachelor's degree or its equivalent and the job you are performing requires a bachelor's degree in order to do it. An individual can stay in the U.S. for a maximum of six years in this category. As with the L visa, an individual must leave the U.S. for one year before he or she can be readmitted in H visa status. Both the H and the L visa count time in the other category against the time cap. The H visa is a cumulative visa; in other words, you cannot change employers and get a new six-year period with each employer. Also, there is an annual cap on the number of H visas issued. Over the last few years, there have been periods of several months where H visas have not been available. The timing in when you apply for your H visa is something to be discussed once your plans are more settled.

As I mentioned above, the permanent immigration process has become very lengthy and it is impossible to say exactly how long it will take. Given the uncertainty of the situation, you might want to delay applying for an H or L visa until you are ready to apply for the green card. Other visa options, which may allow you to test out possible employment situations, include: F-1 practical training, J-1 exchange visitor programs (note: be very careful that you are not subject to the two-year home residence requirement), O visas for individuals of outstanding abilities. The qualifications for some of them are more difficult than for the H visa, and they are all temporary intent visas. However, they do offer you the flexibility to search for a job you can live with without using up the time limits present on the major dual-intent visas.

This means that if you do not have AIDS or tuberculosis, if you are not a user or abuser of narcotics, or a prostitute or a communist, if you are not a smuggler or a terrorist, and if you have all the right papers then you will obtain the visa. If this is not clear to you, please call me and I will be more than happy to discuss it further. As with most things in this world, there are no perfect solutions. What option is best for you depends on your circumstances. I know that the immigration laws are confusing and appear to be contradictory. I hope this letter has helped to clarify the situation. I strongly recommend that you call and make an appointment

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