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Between a Rock and a Hard Place

Posted by attorney Leon Versfeld

The rule of thumb in US immigration status is:"You can not change status if you are not in status." This means that if your non-immigrant status has expired (i.e. B1-visitor), you can generally not change your status to another non-immigrant visa (i.e. F1-Student or H1B) without needing to leave the US to process such application at a Consular Post abroad. OR even worse, you are ready to adjust your status to that of a Legal Permanent Resident (LPR) based on an approved immigrant visa petition you obtained through a family member, employer, as a religious worker, investor or through the Diversity Green Card lottery BUT you did not maintain a valid immigration status while all this was pending, and now you find yourself having incurred unlawful presence in the United States, which could make you ineligible to adjust your status to that of a Permanent Resident with the only option to process your application abroad at the Consular's Office and potentially face a three/ten year bar. This my friend, is a predicament - you are dammed if you leave the US as there maybe a three- or ten-year bar that will keep you from coming back, yet you are dammed if you stay as it could result in deportation/removal proceedings and ultimately barred from ever coming back. So, what do we do about this predicament? - There is an analysis that I propose in seeing your way though this immigration maze. First - Did you know that INA ?212(a)(9)(B)(iv) provides for a 120 days tolling period on the time spent in unlawful presence for an immigrant who is lawfully admitted to the United States and has a timely filed a non-frivolous change or extension of status, and is not working without authorization? This may be that "gray area" you were looking for. If not, are you in the exception criteria? That leads us to the second step in our analysis. Second - Let's see if there is an exception to the three/ten year bar that applies to your matter. The Immigration and Nationality Act (INA) has some statutory exceptions listed under INA ?212(a)(9)(B)(iii) which exempts you from accruing unlawful status and thereby facing the three/ten year bar issue when you want to adjust: 1. No unlawful presence accrues against a minor (under 18); or 2. Unlawful presence stands still while your bona fide asylum application is/was pending - HOWEVER, you'll be kicked back into the "unlawful pool" if you worked without authorization; or 3. No unlawful presence accrues - If you are the beneficiary of a family unity protection under ? 301 of the Immigration Act of 1990; or 4. Unlawful presence will not be accrued by Battered spouses/children where there is a substantial connection between the battery and their unlawful presence. What other exceptions are there: Immediate relatives - "inspected and admitted immigrants" who have been sponsored by their US relative (spouse, children or parents) may adjust despite having failed to maintain a lawful presence. Crewmen and immigrants on transit visas are an exception to this rule. Technical Exception - INA ?245(c) excuses violations "through no fault of his/her own or for technical reasons" Third - Well, no exceptions apply to me, what are my other options? You maybe eligible for a waiver/other exception under the INA.. The INA ? 245(i) - This allows an immigrant to apply for adjustment of status despite unlawful entry, unlawful presence, or working without authorization accompanied by a fee of $1000.00 IF such immigrant is the beneficiary of a labor certification or petition filed under INA ?204 on or before April 30, 2001 and had to be physically present in the US on or before December 21, 2000. OR The INA ? 245(k) - Only used by an immigrant who is the beneficiary of an employment-based petition under the 1st, 2nd and 3rd preference or religious worker. You will need to show that you have been lawfully admitted to the US, and have not for an aggregated period over 180 days from the date of admission - 1.) Failed to maintain lawful status; 2.) Engaged in unauthorized employment; and 3.) Otherwise violated the terms and conditions of your admission. Finally - The last part of this analysis is looking to see if a waiver of the three- and ten-year bar may be available under INA ?212(a)(9)(B)(v) wherein your fate is left up to the Attorney General's discretion. If you are the spouse, son or daughter of an US Citizen or lawful permanent resident you can try and convince the Attorney General that the refusal of admission back to the United States would result in extreme hardship to the aforementioned US Citizen(s). This could be extremely difficult as "extreme hardship" is not properly identified, and you are left to the mercy of the Attorney General, as there is no judicial review of this decision to deny such waiver. After you have gone through this analysis with your immigration attorney, and it seems like there is no hope, you may consider initiating removal proceedings so as to obtain a voluntary departure ONLY IF you are otherwise eligible and facing a three-year bar. I know, you think this is crazy... INA ? 212(a)(9)(B)(i)(I) only applies to an immigrant who voluntary departs BEFORE proceedings commence, therefore, one who voluntary departs after proceedings begin will not be subject to the three-year bar. (Crazy, I know...) However, this does not apply to the ten-year bar! It is important to remember, even if you do not have an approved Labor Certification or immigrant visa petition, one can always start that process now as long as you and your immigration attorney has gone through the aforementioned analysis beforehand to make sure that you will be able to adjust to that of a LPR once your immigrant visa is approved. It goes without saying that it is important to consult with an immigration attorney regarding your particular matter as nothing in this article is meant to be legal advice, but rather informative in nature.

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