Most of my consultations nowadays involve the 10-year bar for unlawful presence and the necessary waiver application. Below is a greatly simplified explanation of a very complicated issue. As in everything immigration, the law implementing the 10-year bar includes exceptions, and exceptions to those exceptions. That’s why it’s imperative for you not to self-diagnose. It’s much better to consult with an experienced immigration attorney.
Basically, the punishing law prohibits immigration officers from admitting into the U.S. for at least 10 years any alien who they determine to have been illegally living in the U.S for more than one year, and who then departed the U.S. for any reason whatsoever.
• Example: Juanita is an undocumented immigrant who lived in Texas since 1990. Last year her mother fell gravely in in Mexico and Juanita went to visit her. Juanita triggered the 10-year bar the moment that she crossed the border into Mexico and won’t be able to obtain her permanent residency through her 21-year old American-born son for at least 10 years, unless she qualifies for a waiver.
• Example: Robert has been an undocumented immigrant living in the U.S. since he was two years old. He recently married his high school sweetheart who is an American citizen. Robert is now applying for an immigrant visa and is scheduled to appear for his interview at Ciudad Juarez next month. Robert will trigger the 10-year bar the moment but he crosses the border from El Paso to go the consulate in Juarez. He’ll return home only if and when his waiver is approved.
It’s extremely easy to trigger the 10-year bar, and it’s extremely difficult to remove it. First, the waiver may only be requested while applying for an immigrant visa to return to the United States (and on rare occasions, while applying for adjustment of status). Second, the waiver has to requested by the immigrant’s US resident or American citizen spouse or parent–the so-called “qualifying relatives”. And finally, the immigrant has to convince the adjudicating officer that his or her absence will cause “extreme hardship” to the qualifying relative. (The meaning of “extreme hardship” is in the eye of the beholder and has been the subject of intense litigation in the past.)
• Example: Juanita’s U.S. citizen son (from the example above) petitioned Juanita and is aware that his mother is barred from 10-years and will need a waiver to obtain her permanent residency. He doesn’t know, however, that Juanita lacks a qualifying relative for the waiver, so she won’t be returning to the U.S. for at least 10 years. She’ll be informed of her fate at the visa interview in Ciudad Juarez, after wasting so much time and effort in her non-existent case.
• Example: Robert (from the example above), unlike Juanita, does have a qualifying relative for his waiver: his wife. If done incorrectly, however, Robert could spend years in Mexico trying to obtain his waiver. (I actually saw a similar case where, after 18 months waiting in Mexico, the immigrating husband panicked and attempted to illegally return to the U.S., essentially barring himself for life. The irony was that USCIS had approved his waiver the very day he attempted to illegally return.)
I’ve seen many errors with the waivers for unlawful presence in my 17 years of practice, including:
• Not understanding the difference between the 10-year bar and the permanent bar for unlawful presence (for triggering the 10-year bar, and then attempting to illegally reenter the U.S.)
• Waivers are unavailable to parents of U.S. citizens unless they have the qualifying relative for the waiver. See the definition of a “qualifying relative” above.
• Not knowing how to prepare and present the waiver application. Details and supporting documentation are essential.
Next week we’ll discuss the provisional waiver (or Form by I-601A) because it greatly eases the pain of the waiver process. The I-601A changed the process but not the law. Now it allows the immigrant to request the waiver for unlawful presence before the interview at the U.S. consulate, thereby eliminating the long waits for a decision after the visa interview.
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