By Attorney Gail S. Seeram,
Through this “Question & Answer” column, our goal is to answer your immigration questions. We appreciate your comments and questions. If you have a question that you would like answered in this column, please email: [email protected]
Question #1: I had a visitor visa to the USA issued in Georgetown, Guyana, for five years in 2002. I got married in Florida and did an adjustment of status to permanent resident, however my marriage did not work out and so I departed the USA. Recently, I applied for a visitor visa to the USA at the Embassy in Georgetown and was told that I am not eligible because I was deported from the USA. How can I clear this up and apply for another visitor visa?
Answer #1: It is possible that maybe you were placed in removal proceedings and did not know, because maybe you were out of the country and did not receive the hearing notice, because you no longer lived at your USA address. If you were scheduled to appear in immigration court and did not appear then you are automatically issued a removal order. It is called an “in-absentia order” – meaning in your absence you were ordered removed by the immigration judge. The only way to find out what happened with your past immigration file/case is to request a copy of your immigration file – our office can assist you.
Question #2: My parent submitted an application for myself and family (spouse, and children under 21 years) to migrate to the U.S. This immigrant petition was filed last year, however, an opportunity has now arisen for us to be processed for the R1/R2 Visa. Will this new process cancel out the petition filed earlier? Also, when we would have received our R1/R2 visas, will we be eligible to remain in the US and achieve green card status thereafter citizenship?
Answer #2: The new R-1/R-2 will not cancel the previously filed petition by your parents – it will continue to be pending while you are in R-1/R-2 status. If a visa is available under the petition filed by your parents and you are in LEGAL status in the U.S., then yes you can adjust your status to permanent resident. As stated in question #2, the current wait is 11 years right now for a petition filed by a U.S. citizen parent for a married child.
Travelling under advance parole does not lead to inadmissibility
Under U.S. Immigration laws, individuals who depart the United States after having lived there without lawful status for one year or more are barred from returning for 10 years. The “10-year bar” is a statutory penalty for having accrued one year or more of unlawful presence in the U.S. The bar is triggered upon departure from the U.S. If an individual with a 10-year bar seeks to return to the U.S., before remaining outside the U.S. for 10 years, then they must file a waiver in order to be lawfully admitted into the U.S.
Individuals who depart the United States while their application for adjustment of status is pending incur an additional problem. Normally, when one leaves the U.S. while their adjustment of status application is pending, that application is considered abandoned. To avoid abandoning the application, the applicant must apply for and obtain advance parole prior to leaving the US. Non-citizens who had one year or more of unlawful presence in the U.S., but had received advance parole from U.S. Citizenship & Immigration Services (USCIS), reasonably believed that they would be readmitted into the U.S. upon their return without having incurred a 10-year bar. Unfortunately, USCIS did not agree.
USCIS had taken the position that a person who obtains advance parole and returns lawfully is subject to the 10-year bar. The position was based on the conclusion that the person “departed” the U.S. However, recently, that position has been overturned by the Board of Immigration Appeals (BIA) in the case, Matter of Arrabally.
This important decision by the BIA, in essence, established the following conditions under which certain non-citizens who are not legal permanent residents could travel abroad, while awaiting adjudication of their adjustment of status application in a situation in which they would have been otherwise inadmissible as legally barred from being admitted into this country.
To travel, such an individual needs (1) to have his or her bona fide adjustment of status application pending before the USCIS; (2) be otherwise not inadmissible or have a prima facie eligibility for a waiver of such inadmissibility; (3) to have been granted advance parole by the USCIS; (4) travel abroad temporarily; (5) be returning to the USA in order to continue pursuing this very application for adjustment of status. If all of these conditions are met, such individuals, the BIA held, do not make a “departure” from the USA for purposes of triggering the overstay bars.
This is a significant victory for individuals who need to travel during the pendency of their adjustment of status application. Matter of Arrabally is also a significant victory for those who have previously been denied adjustment based on their ineligibility for an unlawful presence waiver after departure under advance parole. These individuals may now have grounds to reopen their adjustment of status application, pursuant to new case law.
The Board of Immigration Appeals cautioned that the decision did not protect an applicant of other grounds of inadmissibility. Applicants who are subject to inadmissibility for prior criminal convictions or misrepresentations will still need to obtain waivers in order to obtain their green cards. Moreover, if for any reason, the pending application for adjustment of status is denied, the applicant could be placed into removal proceedings as an “arriving alien,” which could significantly affect their eligibility for relief.
Leaving the United States, where one has accrued unlawful presence is a very intricate issue. Many different factors play a part in determining whether a bar is in effect, and if so, if any relief is available from that bar. Therefore, it is imperative to consult an experienced and knowledgeable immigration attorney before leaving the country to find out the risks of departure and the possibility of return.
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