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Unlawful Presence as a Child Can Come Back to Haunt You
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Posted On: May 2, 2012
USCIS’s May 2009 Unlawful Presence Memo clarified how children can be affected by the permanent bar as adults for actions taken when they were under the age of 18. What’s scary is that many immigrants are getting stuck abroad after their immigrant visa is denied at their consulate interview who had no idea about this change in policy.

A recurring problem I see in the waiver context is that many couples still resort to hiring notarios and document preparers for their I-130s (immigrant visa petitions) who do not know the law and fail to advise the couple of the risk that if the immigrant travels abroad, s/he may not be able to come back, sometimes for 10 years, sometimes longer depending on their past immigration history. I often receive calls from outside the US from an angry and frustrated US citizen who tells me that his wife was denied a visa and given the permanent bar and the notary they used never warned them. Now, they’re stuck and have to consider seriously moving to Mexico. For years, Ciudad Juarez consulate applied the permanent bar against immigrants who had unlawful presence in their past and accrued under the age of 18. The CIS memo formalized this policy, falling in line with Ciudad Juarez’s Department of State Consulate view, but now on a worldwide scale. Travel got even riskier. Yet, to this day, I still get the calls about immigrants stuck abroad because no one ever told them about the risks of travel.

One of the biggest, repeat problems I see now are with adults who entered the US illegally under the age of 18 who are now having problems applying for immigrant visas based on a family member or spouse’s sponsorship now because of their illegal entry when s/he was a minor.  The understanding that a child could not have understood the consequences of their actions (illegally entering the US or overstaying) under the age of 18 has not been accepted by CIS in the unlawful presence context as is now formalized in its May 2009 memo.

The most notable problem is CIS’s policy on the permanent bar.
Although CIS does not count unlawful presence (illegal stay in the US) against minors who have triggered the 10 year bar or the 3 year bar (unlawful presence doesn’t start to add up until the child reaches 18), unlawful presence before the age of 18 does count against children for purposes of the permanent bar. 
If a child illegally re-enters the US after April 1, 1997 after being in the US previously for a year or more under the age of 18 after April 1, 1997, the child will have violated the “permanent bar.”

The permanent bar does not allow for a waiver of the unlawful presence and the applicant must reside outside of the US for 10 years before reapplying for lawful entry. It doesn’t matter if the child, now an adult, has an approved immigrant visa filed for him or her and waiting at the consulate abroad based on sponsorship by a US citizen spouse or parent or LPR spouse. The immigrant must reside outside of the US for ten years.

Note that the permanent bar is a different type of bar than the 10 year unlawful presence bar which would apply if an immigrant entered the US (illegally or legally and overstayed) and stayed for 1 year or more without lawful status and then departed the US. This waiver is waivable and if the waiver is approved, the immigrant can return to the US before the 10 year period. In contrast, the permanent bar provides no waiver and is triggered by that 1 year or more of unlawful presence or deportation followed by an illegal entry. If an immigrant had just departed the US and not re-entered, a waiver could be available. That’s what so scary about the permanent bar, and now the fact that it is applying to apply against Adults based on their actions as child.

It is so important to always consult a competent immigration attorney before leaving the US or filing any documentation with USCIS and not rely on document preparers for legal advice. Doing so could be an incredibly costly and tragic mistake, leading to years of unnecessary separation from loved ones.
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Attorney Heather L. Poole practices exclusively in the area of U.S. family-based immigration law and citizenship law. Heather is a nationally-published immigration author, frequent lecturer on immigration issues, and member & officer of the American Immigration Lawyers Association’s Southern California Chapter. For more information about Heather and the services offered, visit www.humanrightsattorney.com

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