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.
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.
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