Q: How will Unlawful Presence Affect the green card process?

Q:   Dear SRW Border Lawyers,  I am a U.S. citizen born in New York. My husband was born in Guatemala and entered the United States without being inspected in 2001, and has never left the country since that time. We met in 2004 and were married in 2007. We have two children that were born in the U.S., a son, 3, and a daughter, 8. My husband would now like to pursue a green card. How will his illegal entry and lengthy presence in the country without any status affect his chance of getting a green card process?

A:   Thank you for your question. Based on the information you provided in your question, there are several issues that need to be addressed before your husband can proceed with applying for a green card.  While I cannot give you a complete detailed analysis of your options without learning more about your husband’s history, I can provide you with some general information that may be helpful.

First, since your husband last entered the U.S. without being properly inspected, he is ineligible to adjust his status to that of a green card holder from within the U.S. and would require an immigrant visa from a U.S. Consulate in Guatemala.  In order to apply for this immigrant visa, he would need to depart the U.S. and appear for his immigrant visa interview in Guatemala.  Unfortunately, since your husband has lived in the U.S without status for such a long period of time, when he departs the U.S., he would become subject to a (10) ten-year bar unlawful presence bar. The (10) ten-year unlawful presence bar is applied to individuals who have been unlawfully present in the U.S. for a period of one year or more, who then depart the U.S. and are attempting to re-enter the U.S.  Thus, once he leaves the United States, his departure will trigger the bar and he will not be able to enter the country for ten (10) years without a waiver.

In order to overcome the unlawful presence bar, your husband will need an I-601 waiver. The waiver must establish that you and/or your children (all U.S. Citizens) will suffer “extreme hardship” if your husband is not able to reenter the country and/or you and the children were attempt to live with him in Guatemala until his unlawful presence bar expired. Extreme hardship can be demonstrated in many ways; however, evidence of mental health issues resulting from a loved ones inability to enter the U.S., such as depression and anxiety, is particularly effective.  For detailed information about the I-601 waiver process, please visit our I-601 waiver page. 

As far as the process to file, your husband would submit the I-601 waiver application to overcome his inadmissibility at his immigrant visa interview. The catch, however, is that the waiver is difficult to obtain, and loved ones are often separated for long periods of time while the waiver is adjudicated. Recently, the United States Citizenship and Immigration Service (“USCIS”) proposed a rule that may be applicable in your case, assuming that your husband’s only ground of inadmissibility is unlawful presence.  You may read more about this provisional hardship waiver process currently under consideration by clicking here (please note that this rule is not currently in effect). 

If your husband is denied his immigrant waiver at his immigrant visa interview, there may be little else that could be done in the near future for him to return to the U.S. Therefore, it is imperative that you immediately consult with an experienced immigration attorney to understand your options moving forward, the risks involved, and to discuss the merits of a possible extreme hardship waiver application.

B-1 in lieu of H-1B Approved for Canadian Corporate Executive

Earlier today, Senior Partner Bill Reich appeared at a local Port of Entry, representing a Canadian corporate executive who was seeking B-1 status for a period six (6) months, in lieu of an H-1B.  The applicant is employed by a Canadian company, which has a U.S. subsidiary who temporarily required a corporate executive to review its business operations due to difficulties that had arisen after the company discharged its president.  The applicant is being sent to the U.S. subsidiary temporarily to troubleshoot the situation and make some recommendations on behalf of the Canadian employer.

While applicants for B-1 (in lieu of H-1B) status must still meet the requirements of an H-1B, they do not have to bear the burdens of a typical H-1B filing which requires an LCA, a formal filing with USCIS, and the payment of the applicable H-1B filing fees (which is a relatively high expense that the U.S. employer must bear).  The B-1 (in lieu of H-1B) status was created with the intent of facilitating travel to the U.S. by those foreign nationals who would normally qualify for a H-1B visa, but who simply needed to enter the U.S. for a brief period of time.

According to the Dept. of State’s Foreign Affairs Manual, to qualify for B-1 (in lieu of H-1B) status, a foreign national must qualify for H-1B status, establish non-immigrant intent (this is established by demonstrative strong ties to their home country), must be regularly employed abroad and their salary must be paid by their foreign employer.  While in the U.S. for a limited amount of time, they must continue to be paid by their foreign employer and not from the U.S. entity that they are performing services for while in the U.S. in B-1 (in lieu of H-1B) status. 

See 9 FAM 41.31 N11  - Aliens Normally Classifiable as H-1 or H-3. 

Once CBP was convinced that our Client qualified for B-1 (in lieu of H-1B) status, he was issued a multiple entry Form I-94, valid for six months.  The cost of this Form I-94? $6 to be paid to CBP at the Port of Entry. With this B-1 (in lieu of H-1B) status, the Client will now be able to carry out his duties as requested by his Canadian employer for their U.S. subsidiary and remain in strict compliance with U.S. immigration laws.

I-212, Application to Reapply After Removal, Approved in record time!

SRW Border Lawyers was notified last week that another I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, was approved! This was especially surprising due to the fact that the approval came only a month after filing the application. Recently, normal processing time for an I-212 application can take several months. 

You should file an I-212 waiver if:

• You were removed from the U.S. as an inadmissible alien through expedited removal proceedings under INA § 235(b)(1) that were initiated when you arrived at a port of entry; or
• You were removed from the U.S. as an inadmissible, arriving alien under INA §240; that is, removal proceedings were initiated upon your arrival at a port of entry in the U.S. (Note: the paperwork you received during your removal proceedings should indicate under which provision you were removed under); or
• You violated the terms of a Voluntary Departure order by not timely departing the U.S.

For more information, please visit our web page on I-212 waivers under the Border Solutions drop down menu.

If you were previously removed from the U.S. and are interested in filing an I-212 waiver, please contact our office so we can discuss the details of your case. 

By SRW BORDER LAWYERS

DHS implements ("TRIP") Program to resolve difficulties experienced by travelers

Traveling to the United States can be a nightmare for some foreign nationals with previous immigration issues. These individuals can be held at a port of entry (e.g. a border crossing) and questioned for hours before they are finally allowed to enter. The screening process is often discouraging and stressful, and it leaves many foreign nationals asking "is it even worth the hassle?"

In an attempt to improve the screening process, the Department of Homeland Security ("DHS") created the Traveler Redress Inquiry Program ("TRIP"). TRIP is a single point of contact for individuals who are trying to resolve issues that complicate the screening process. Once you enroll in TRIP, your inquiry will be sent to the appropriate office for review and adjudication.

SRW Border Lawyers recently received a call from a client who expressed strong reservations about attempting to cross the border due to her previous experiences. As background, client was improperly issued an order of expedited removal and barred from entering the United States several years ago. SRW Border Lawyers, however, was able to vacate the order and clarify the client's record to reflect that she was admissible to enter the U.S. As a result, Customs and Border Protection ("CBP") issued a clarifying letter as well indicating that the client was in fact admissible. Despite CBP’s clarification letter, client still experiences difficulties when attempting to enter the U.S. Thus, client enrolled in the TRIP program and is currently awaiting a response (we will update this blog entry to report client's next port of entry screening experience).

If you have been experiencing difficulties at a port of entry, please call our office to discuss how TRIP may be able to help you in resolving your border related issues.