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Potential options for noncitizens subject to permanent bar based on unlawful presence.

By February 18, 2021March 19th, 2021Family Immigration, Immigration, Visa Waivers
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So, if my spouse is subject to the permanent bar because of his past unlawful presence, subsequent departure and re-entry without admission and inspection, what options if any do we have available?

Honestly, not that many. One option to consider is having your case reviewed to confirm whether in fact the time spent in the United States did total one year before the last departure from the US. In the event within the span of the last ten years, the total amount of time spent in the US was less than one year, then a strategy can be prepared to convince the immigration officer reviewing your case that the permanent bar does not apply to your spouse.

In the event it is clear that your spouse is subject to the permanent bar then options will focus more on planning the future with your spouse to determine living arrangements while awaiting the opportunity to again attempt to have your spouse return to the United States. Fortunately, the permanent bar does not mean it is a life sentence if your spouse is willing to spend at least ten years outside of the United States. After spending a total of ten years outside of the US, your spouse will now be eligible to make a special application to the immigration service to request re-entry into the United States. This application serves as a type of waiver which if granted can now open the door to obtain the green card. Furthermore, this waiver does not necessarily depend on the hardship of a family member, but such hardship will be considered as well as consideration of any all factors that can show that your spouse deserves a second chance to live in the United States.

Consider that although remaining outside the US for ten years is likely a very burdensome option the alternative is living in the United States without status facing potential detention and removal by immigration authorities. As a result, it is very important to weigh these options with the consultation of an experienced immigration attorney to consider potential consequences resulting from this option as well as to explore whether there are other options not based on a family based green card case available to obtain legal status in the United States.

I heard that even when a noncitizen has a bar there is still a chance to apply for a visitor visa, so if my spouse departs, can he return to the US on such a visa?

It is possible since there is a different waiver that can be applied for in conjunction with a temporary visa, but understand that although possible, the consular officer abroad can still deny the visa and/or waiver based on the possibility of the consular officer suspecting that your spouse is intending to stay again permanently in the US violating the terms of the temporary visa. This means that although not impossible to obtain such a visa, it is very difficult to obtain a visitor visa under these circumstances. Also keep in mind that the nature of such a visa is temporary, so it will not grant him a permanent permission or status to remain in the United States.

What if we get lucky and my spouse is granted a visitor visa, can he spend the minimum ten years within the United States?

Understand that this is precisely the type of scenario that a consular officer is likely looking for when determining whether to ultimately grant the visitor visa which is why obtaining such a visa is difficult. Regardless, in the event the visa is granted, a significant issue is that the law is not completely clear on whether a noncitizen subject to the permanent bar or even the ten year bar can spend the ten years within the US after a lawful admission. There is court precedent that indicates that credit for the passage of time is allowed, but immigration authorities in some jurisdictions have interpreted this case law to further require that the visa that allowed for legal entry had to have been  obtained with the necessary waiver we just discussed.

The immigration service has denied green card cases where the noncitizen failed to disclose to the consulate past presence in the US and/or subsequent illegal re-entry when applying for the visa. The Immigration service denied these cases indicating that since the visa was obtained improperly, the ten years that had passed within the US were not to be credited to the noncitizen subject to the bar.

There is probably nothing to lose legally in attempting to obtain the visa, but understand that it should be attempted disclosing the past presence in the US including applying for the visa with a request for the waiver if the goal is to spend the remaining bar period within the US. Again, remember even if the visa is properly obtained, after some months in legal status in the US, your spouse will fall out of status and will be subject to potential detention and removal by immigration authorities while living without status in the US so very careful consideration should be given with this option.

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