For immediate release Weyergraf Immigration, PA
In 1996 Congress passed a law that made it extremely difficult for people who had illegally entered this country to ever obtain legal status. The law stated that people who remain unlawfully in the United States for 180 days or 365 days would be subject to a penalty whereby they would be ineligible to return to the United Sates for 3 years and 10 years, respectively. This law hit especially hard, people who had entered the United States unlawfully because the 3 and 10 year bars only applied when the person departed the United States. The anomaly in the law that was created was simply this: if you entered the United States legally, even though you may have stayed here many years unlawfully you could marry a U.S. citizen or your if your parent was a U.S. citizen and you were under 21 you could finalize your papers in the United States without leaving U.S. soil. Remember the 3 and ten year penalties only apply upon departure. BUT if you entered illegally, even if you married a U.S. citizen, or your parent was a U.S. citizen who could apply for you as a child under 21 years of age, you would have to leave the United States and hope that a waiver allowing you to return would be granted—with no guarantees. If you left the United States and the waiver was not granted, you would have to stay out of the country for 10 years. An example of this unfair law was how it applied to children who were brought into the US illegally by their parents at a very early age, who grew up here, attended school and ended up marrying their high school sweetheart. These kids were left in a quandary. Should they risk finalizing their papers in their home country with the very real possibility of not being permitted to return to the United States for ten years?
Now a new rule being proposed by the Obama Administration will take a lot of the guessing out of the process. In those cases where the person has to leave the United States to finalize their case, the new rule would let them file for a waiver and have a decision on the waiver BEFORE they leave the United States. If the waiver is approved, they can leave the U.S. to finish processing their case with an excellent chance of being permitted to reenter the United States after their visa interview. If the waiver isn’t approved….well…they should probably take that as a very visible sign from their Higher Power that it is not a good idea to leave. This is HUGE step in the right direction because there are many, many spouses and children of U.S. citizens who, but for the uncertainty of whether or not they will be permitted to return, would complete their green card processing in their respective home countries.
But there a few key points to remember:
- This only applies to spouses and children of U.S. citizens and it does not apply to all children of U.S. citizens. Spouses and children of legal permanent residents are not covered by this rule.
- The rule is in its initial stages and the details are sketchy. We do not yet know exactly how this procedure will work and when it will go into effect.
- The applicants must still prove that their not being able to return to the U.S. will cause extreme hardship to their U.S. citizen spouse or parent.
- The 3 and 10 year bars do not apply until a person reaches age 18 and subsequently stays in the United States for 180 or 365 days after his or her 18th birthday, but there are some other complicated rules that apply to minors with respect to penalties that in some cases can be even worse. Consult with a knowledgeable attorney before making any major decision in your case.
- All cases are different and before making any decision that can have such life altering consequences, it is important to consult with a duly qualified attorney who is knowledgeable of immigration law.
This article is being offered for general informational purposes only and should not in any way be construed as legal advice. Any decisions that you make with respect to your immigration case or status should only be made after a personal consultation with a duly qualified attorney knowledgeable of immigration law.