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After an illegal immigrant has been granted a voluntary departure, how long does he have to wait before applying for a new visa.

Lutz, FL |

I am a US citizen, and I am trying to bring my dad back to the US. he came in 2002 and returned to Peru in 2004 with a voluntary departure. At the interview with the US embassy in Peru, he was told that he has to wait 10 years before a visa can be granted. Is this the law even though he was never deported? And why USCIS and NVC approved this case instead of telling me that he is ineligible because of the 10 years frame? I called USCIS and they told me that it is at the US consulate (in Peru) discretion.

Attorney Answers 5


  1. Best answer

    The question is whether your father generated more than one year of unlawful presence in the United States.

    If an alien:
    1) generates one year or more of unlawful presence (i.e. remained in the United States one-year after the expiration of his visa) and;

    2) that alien thereafter departs the United States (leaving on voluntary departure qualifies as "departing from the United States"), that person in statutorily illegible for the issuance of a visa for a period dog ten years.

    The ten year bar can be "waived" in certain circumstances where a qualifying U.S. citizen relative is able to establish extreme hardship.

    I advise consulting with an experienced immigration attorney.

    VOSBIKIAN & VOSBIKIAN, L.L.C. (856) 755-1400, e-mail: ssvosbikian@voslaw.com - Offices in Atlantic City, Cherry Hill, Newark, and Trenton, NJ. Please consult with a licensed immigration professional to provide you with a thorough legal advice. This response is not a substitute for specific legal advice and it should not be construed to create an attorney-client relationship. Please visit and share this site: www.voslaw.com


  2. They can apply at any time. However, issuance of a visa is at the sole discretion of the consular officer.

    J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.


  3. I think the Embassy said that because he was unlawfully present here before he took the voluntary departure. They are two different things.


  4. He will need a waiver.

    Kyndra L. Mulder, Esquire
    The Mulder Law Office, P.A.
    4110 Southpoint Blvd., Suite 101
    Jacksonville, Florida 32216

    (904) 296-7702
    www.MULDERLAWOFFICE.com
    immigration@mulderlawoffice.com

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