It usually comes as a shock when I tell these people that even though they are married to a U.S. Citizen, they still must go back to their homeland to obtain final approval to return permanently to this country, unless they had a previous immigrant petition filed for them by April 30, 2001. However, most people simply don’t have the benefit of having a previous petition filed for them, so the green card cannot be approved while they are in the U.S. For example, Mexicans in this situation would have to travel to the U.S. Consulate in Juarez, Mexico, which is just across the border from El Paso, Texas, to be interviewed and obtain approval, a process called “consular processing.” Just across the border from Texas? No problem, let’s book a ticket… But wait, not so fast! The problem is, these people had been living in the U.S. Illegally for many years prior to departing for their homeland. If at least a year illegally, which is common, then the immigration law imposes a harsh 10-year bar against these people from getting their cases approved if they are now in their country trying to apply to return, even if they have a U.S. Citizen spouse and children waiting back in the U.S.! This is perhaps even a bigger shock to people. If more than 180 days to less than a year illegally then they face a three-year bar from returning, which is still too long. I’ve seen many people made this journey without adequate prior information and legal advice, and now they’re stuck in their country without a way of returning to the U.S. Except by entering illegally again. I used Juarez, Mexico, as an example only. If a person came here illegally from a country much further from the U.S., the journey back to the homeland and then being stuck there because of the bar is a scary prospect! Only if they had been illegal in the U.S. For 180 days or less will there be no bar, but not too many people fall into that category. Also, time living illegally in the U.S. While under 18 does not count. These bars were put into the law by Congress in 1996. Since then, many of us in the immigration law community have been pushing Congress to get rid of them. We may have some success with the new Obama Administration in the next four years. Meantime, the same law that added these bars does provide a way of overcoming them, and that is through what’s known as the “extreme hardship” waiver. Basically, the applicant has to prove to the consulate officer that the denial of their case (which means no visa issued to enter the U.S.) would result in extreme hardship to his or her spouse, or a parent, if the parent happens to be a U.S. Citizen or legal resident. Extreme hardship is not an easy standard to meet. It is not merely the claim that you will be separated from your spouse and family in the U.S. Because every one of these cases involves separation. It is something more, encompassing emotional, psychological, financial, and material hardship that the family will suffer. Documents and evidence must be submitted to demonstrate these hardships. For a realistic chance for the waiver to succeed, all the evidence should be marshaled and put together by an immigration attorney experienced in this type of matter. Otherwise, it will be too easy for the consular officer to deny the waiver. To make it clear, the 3- and 10-year bars do not take effect if the person never leaves the U.S. However, if they remain here, they cannot become legalized under current law. It’s the person’s choice, of course, to go or to stay. To go leads to possible approval by the consulate overseas for permanent residence at a considerable risk, while to stay leads to the same old same old of being illegal in the U.S. It’s really almost a Catch-22 situation for immigrants. When you search the internet for information on green card through marriage, be careful of sites that discuss how the immigrant spouse can file for “adjustment of status,” “adjustment,” or “Form I-485″ without even mentioning these bars. “Adjustment of status” is the process of filing for the green card here in the U.S. Without having to leave. It simply is not possible if the immigrant came illegally! The only exception is if the immigrant spouse had a previous immigrant petition filed for them prior to or on April 30, 2001, which I briefly alluded to before. This could have been a family I-130 petition filed for them by a relative or former relative who was a U.S. Citizen or legal resident, or even a labor certification or employment petition filed for them by an employer offering a permanent job. If that is the case, the good news is that the person does NOT have to travel to the U.S. Consulate to get their green card but can adjust their status here. This is the famous 245i law that many immigrants have heard about. They would fall into the “easy” cases described in my previous post. An extra $1,000 penalty is necessary in addition to regular filing fees, but that’s a whole lot better than having to leave the U.S. And be confronted with the 3- or 10-year bar!
