Skip to main content

Overstay less than 1yr 09-10; VD in '10 after removal proceeding/NTA issuance. Am I subject to 3 yr bar ahead of IV interview?

90028 |

• Remained in US after Oct 31, '09 without authorization.
• Received NTA Removal Proceeding on Aug 9 2010 to appear in court on Sep 13, 2010.
• On Sep 13, '10 granted voluntary departure by immigration judge.
• Left US on Oct 15, '10 with VD time frame.
• My priority date is approaching & I am likely to have my immigrant visa interview in the near future (petition filed by USC mother).
• Am I likely to be subject to the 3 yr or 10 yr bar? What should I do or can I do to avoid bar (waiver I-601)?
• In my view, unlawful presence < 365 days & also took VD AFTER removal proceeding so shouldn't be subject to 3 yr bar. In case I am subject to bar, I will have been present for greater than 3 yrs outside US since Oct 15, 2010.
• Concrete answers pls: Don't suggest see attorney as I already am

Attorney Answers 4

Posted

I won't tell you to seek the advice of an experienced immigration attorney, since you already know that answer. What you should KNOW. Your case is far more complex than it appears on its face. Yes, you are subject to the 3 year bar and yes you better have a boat load of evidence. You know this. However only an attorney can evaluate ALL the facts of your case. There are many other reasons that will cause your case to be denied. Perhaps, you can purchase the latest edition of KURBAN, a wonderful immigration treatise that costs over $400.00. It is not easy to stay on top of a law that has many minefields.

Mark as helpful

1 found this helpful

3 comments

Asker

Posted

Thank you - this type of response is more helpful and useful, and I appreciate it a lot. Would appreciate similar feedback from other professional lawyers on avvo.com. Sincerely,

Asker

Posted

Default Re: Avoiding 3 year bar by VD from IJ 212(a)(9)(B)(i)(I). . . was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e) [sic]) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or Beginning Apr. 1, 1997, a person who is unlawfully present in the U.S. for a period of more than 180 consecutive days but less than one year who voluntarily departs the U.S. before commencement of proceedings is barred from readmission for 3 years from the date of the person’s departure or removal. INA §212(a)(9)(B)(i)(I), 8 U.S.C. §1182(a)(9)(B)(i)(I). If a person is granted voluntary departure (VD)*after*proceedings are initiated s/he is not subject to 3-year bar. Cable, DOS, 98-State-060539 at ¶¶17–19 (Apr. 4, 1998), published on AILA InfoNet at Doc. No. 98040490. The distinction that allows persons to escape the 3-year bar but not the 10-year bar if they are granted VD after proceedings has been upheld. Cervantes-Ascencio v. INS, 326 F.3d 83, 85–86 (2d Cir. 2003) [statute making exception is clear on its face and agency interpretation of statute is reasonable under Chevron]. You are correct Attorney Husna. I agree with you completely. I think the issue or challenge arises when during an IV interview, the interviewers rushes to a conclusion or is unaware or out of frustration or simplicity rejects/denies the visa. Of course, under such a circumstance working with a competent law firm and lawyer is critical who can and will follow up and defense your case. Hope your comment is read by other lawyers and the community at large. I would also like to point to: I would like to point you to the following: http://shusterman.com/newsletterusimmigrationmay2008.html#5 There is a little-known exception to the three-year bar, I began. If you simply leave the U.S. after accumulating 180 days of unlawful presence, you cannot return for three years. However, if you are ordered by an Immigration Judge to leave “voluntarily”, the bar does not apply. ----------------------------------------------------------------------------------------------------------------- http://shusterman.com/newsletterusimmigrationmay2008.html#5

Asker

Posted

Visa issued and not subject to 3 year nor 10 year bar. I was correct.

Posted

Yes

NYC EXPERIENCED IMMIGRATION ATTORNEYS www.myattorneyusa.com; email: info@myattorneyusa.com; Phone: (866) 456-­8654; Fax: 212-964-0440; Cell: 212-202-0325. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter.

Mark as helpful

4 lawyers agree

5 comments

Asker

Posted

Well in that case since I have already spent 3 years outside the US since voluntary departure, how does the bar still apply or hold?

Alexander Joseph Segal

Alexander Joseph Segal

Posted

it is a history now.

Asker

Posted

Alexander, no. Default Re: Avoiding 3 year bar by VD from IJ 212(a)(9)(B)(i)(I). . . was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e) [sic]) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or Beginning Apr. 1, 1997, a person who is unlawfully present in the U.S. for a period of more than 180 consecutive days but less than one year who voluntarily departs the U.S. before commencement of proceedings is barred from readmission for 3 years from the date of the person’s departure or removal. INA §212(a)(9)(B)(i)(I), 8 U.S.C. §1182(a)(9)(B)(i)(I). If a person is granted voluntary departure (VD)*after*proceedings are initiated s/he is not subject to 3-year bar. Cable, DOS, 98-State-060539 at ¶¶17–19 (Apr. 4, 1998), published on AILA InfoNet at Doc. No. 98040490. The distinction that allows persons to escape the 3-year bar but not the 10-year bar if they are granted VD after proceedings has been upheld. Cervantes-Ascencio v. INS, 326 F.3d 83, 85–86 (2d Cir. 2003) [statute making exception is clear on its face and agency interpretation of statute is reasonable under Chevron]. You are correct Attorney Husna. I agree with you completely. I think the issue or challenge arises when during an IV interview, the interviewers rushes to a conclusion or is unaware or out of frustration or simplicity rejects/denies the visa. Of course, under such a circumstance working with a competent law firm and lawyer is critical who can and will follow up and defense your case. Hope your comment is read by other lawyers and the community at large. I would also like to point to: I would like to point you to the following: http://shusterman.com/newsletterusimmigrationmay2008.html#5 There is a little-known exception to the three-year bar, I began. If you simply leave the U.S. after accumulating 180 days of unlawful presence, you cannot return for three years. However, if you are ordered by an Immigration Judge to leave “voluntarily”, the bar does not apply. ----------------------------------------------------------------------------------------------------------------- http://shusterman.com/newsletterusimmigrationmay2008.html#5

Asker

Posted

Visa issued and not subject to 3 year nor 10 year bar.

Alexander Joseph Segal

Alexander Joseph Segal

Posted

What was your point?

Posted

This is not a consultation with an attorney.

Mark as helpful

1 comment

Asker

Posted

I know that.

Posted

The 3 year bar does not apply to people who are granted voluntary departure by an Immigration Judge. Also, the three years bar is measured from the date of the physical voluntary departure. So, it appears that there is no 3 or 10 year bar in your case unless there was some prior overstay issue. The appropriate thing to do it to ensure the consular officer has all the documentation to establish the relevant dates.

Mark as helpful

1 found this helpful

1 comment

Asker

Posted

You were correct. Visa issued and not subject to 3 year nor 10 year bar. Thanks!

Immigration topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics