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Unlawful Presence Waivers: The 3 & 10 Year Bars Understanding What You're Up Against - The Law The 1996 Illegal Immigration Reform and Responsibility Act (IIRAIRA) created three year, ten year, and permanent bars on admission to the U.S. for a variety of immigration status violations.These bars apply widely and affect immigrants who have family in the U.S., have worked and paid taxes in the U.S., and in many cases are otherwise eligible for permanent resident status. The three year bar to re-entry into the U.S.: The three year bar applies to individuals who have been unlawfully present in the United States for a continuous period of more than 180 days (6 months), but less than one year, and who voluntarily depart the U.S. The bar is triggered by the act of departing the U.S., even if to consular process to obtain an immigrant visa. Yes, this may apply to you even if you are married to a U.S. citizen. The ten year bar to re-entry into the U.S.: The ten year bar applies to individuals unlawfully present in the U.S. for an aggregate period of one year or more who depart voluntarily (aggregate = CIS adds up all time in US without lawful presence, even if from different periods of time and different stays). Unlawful presence begins to accrue when the period of authorized stay expires or after an entry to the U.S. without inspection. Again, the bar is triggered by the act of departing the U.S., even if to consular process to obtain an immigrant visa. Yes, this may apply to you even if you are married to a U.S. citizen. The Waiver OptionIf the immigrant is married to a U.S. citizen or lawful permanent resident, or has a U.S. citizen or LPR parent, a WAIVER MAY BE AVAILABLE for 3 & 10 year bars but not for the permanent bar. To qualify for this waiver, which if approved, allows the immigrant to lawfully re-enter with the immigrant visa and not wait outside the US for 3 or 10 years, the immigrant must prove that his or her USC or LPR spouse or parent will suffer EXTREME HARDSHIP if the waiver is not approved. What is Extreme Hardship? The key term in the provision is "extreme" and thus, only in cases of real actual or prospective injury to the United States national or lawful permanent resident parent or spouse will the bar be removed. Common results of the bar, such as separation, financial difficulties, etc., in themselves are insufficient to warrant approval of an application unless combined with much more extreme impacts. Applicants are encouraged to submit as much documentary evidence as possible proving that failure to receive the waiver requested would result in extreme hardship to your US citizen spouse or parent. Consulates differ on what factors in a case are more persuasive than others. The largest consulate in the world with the most waiver applications is Ciudad Juarez, Mexico. As of 2005, the CIS office attached to this consulate, considered the following as types of factors that are relevant to deciding whether the US citizen parent or spouse will suffer "extreme hardship" (the consulate will also consider other factors, not listed here): a. HEALTH - Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term. b. FINANCIAL CONSIDERATIONS - Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (i.e., elderly and infirm parents). c. EDUCATION - Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in specific fields. d. PERSONAL CONSIDERATIONS - Close relatives in the United States and /or your country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States. e. SPECIAL FACTORS - Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures. f. Any other situation that you feel may help you meet the burden of extreme hardship. WARNING: Remember, any extreme hardship case will be difficult to prove. It is a completely discretionary decision by the CIS officer reviewing the case who may see one hundred other cases that day. Just because you may think that you have a strong case under these factors does not mean the CIS officer will think so. Before taking a risk by leaving the US to consular process an immigrant visa, always, always, consult with a qualified immigration attorney about your chances of getting an approval based on the potential arguments and documentation you can provide with the waiver application. An attorney or a consultant who says s/he can get you this waiver for $1500 and does not take the time to find out the specifics of your immigration history, your spouse's history and talks about these factors with you to see how strong your waiver argument(s) could be, is not the right attorney for you. Are you going to feel confident that your future together has the best chance with someone who won't give you an in-depth evaluation? Waivers take a lot of work and time to compile; $1500 is an extreme low quote and indicates that the attorney is not going to spend the necessary time preparing your case. Be careful. A Recent Success story: (Obtained waiver for U.S. citizen spouse who was faced with potentially losing his wife due to the 10 year bar; CIS office: Ciudad Juarez, Mexico) Actual letter from client: "To whom it may concern: I met my wife in 2001 and soon fell in love, Six months later we where married in If everything went OK, My wife would have a green card and return with me. If not, she would have to stay in Now this is what impressed me most about Heather! EVERYTHING she said would happen happened EXACTLY like she said it would! While staying at the motel and waiting day after day, We met quite a few people and got to talking. I was SHOCKED at how many people where totally unprepared and did not have the documentation they needed, Most of these people went away very unhappy to say the least! Everything went smoothly for us, and within one hour of my wife receiving her new green card, we where back across the border and on our way home! Our lives have changed so much within the last six months, My wife has her new Social Security card, Drivers license, etc……She now has more ID than I do! I can honestly say we owe all of this to Heather and Carla, We will never forget how they helped us! If anyone doubts this, Feel free to call me anytime and I will be glad to tell them. Thanks." * * * * * Recent Success Story (Obtained waiver for U.S. citizen spouse who was faced with potentially losing her husband due to the 10 year bar; CIS office: Ciudad Juarez, Mexico) Actual letter from client: "Heather, I chose you to represent me because you are very knowledgeable and confident. You took a lot of time with me during the initial consultation to answer questions and you were able to give me your honest opinion on the case. I would recommend the firm to others - the quality of services were excellent, the fee charged was reasonable, we were regularly informed about the progress of our case, we were treated courteously by your staff, and we got the outcome we were hoping for. Very good work with great outcome! Thanks again for all your time and hard work. We could not hyave gone through the waiver process alone. It made all the difference to work with someone so knowledgeable of ushc a complicated and stressful process." * * * * * Update on Ciudad Juarez Filings 1/2009 Ciudad Juarez, Mexico, is the home of all unlawful presence & misrepresentation waivers for Mexican citizens. Recently, the consulate and attached CIS has moved to a larger location and has changed the process for arranging waiver interviews. In the past, through the "Pilot program", immigrants were able to use the call in center to make a waiver appointment before they even left the U.S. to pursue the Immigrant Visa interview. The applicant knew the dates/times for both the IV interview and the waiver interview. Now, applicants must wait until the IV interview and receive a paper from the consul indicating that they have triggered a ground of inadmissability (ten year bar, etc.) before the applicant is allowed to schedule an appointment to file the waiver. The waiver appointments can usually be made within 1 -2 weeks from the IV interview date. This is a faster turnaround then we have been used to lately for interviews. The applicant who does not prepare ahead of time, however, may not have much time to prepare a strong waiver and should delay making this waiver appointment until a strong case can be compiled. The applicant (immigrant) must stay in Mexico until the waiver is approved. _ The process for submitting the waiver has also changed. Now, applicants submit the waiver at a long line of consul windows, pay $8 for a DHL envelope and are told to wait at home for an answer. CIS then uses DHL to deliver either an approval notice, a backlog notice, or a denial notice in the mail to the applicant, usually within 1 day after the waiver submission. If the waiver is approved, the DHL envelope will also contain instructions on which bridge the applicant may cross with the package containing their Immigrant Visa. Prior to this procedure, applicants were notified, many times, the same day whether or not their waiver package was approved. _ Juarez is reporting a 14-16 month processing period for those new cases and already existing 9,000 cases referred to the backlog (i.e., not immediately approvable within a day of the interview). There is usually no way to speed up this processing time unless an extreme, emergent life-threatening situation arises. The backlog takes so long because CIS only has 4 officers to decide over 40 cases each per day and has few temporary staff to help process the backlog cases. CIS is even sending backlog cases to other smaller CIS offices in Mexico to help with the backlog. _ CIS officials are not interviewing applicants but are instead basing their entire decision for the waiver on the documents submitted. Officers only spend approximately 10 minutes reviewing a particular case, given the amount of cases they have to review every day. The consulate officers only approve about 50% of cases they see every day. If there is a separate A file to examine or FBI criminal hits or arrests, the case will likely be referred into the backlog unless these issues can be addressed sufficiently when the waiver documents are submitted. Thus, it is even more crucial than ever for applicants to submit a strong package since there is no one to answer to when a decision is received in the mail and the potential for backlog is now over a year. |
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