World Journal Weekly Q & A - November 13, 2011

Q & A 1.


Q&A 1.

U.S.C.I.S. Discussing Possibility of I-601 Filing in the U.S. for Persons Having to Interview at Consulates for Immigrant Visas Could Help Reader who Sneaked Into the U.S. and Married U.S. Citizen.

An illegal immigrant asks:

I sneaked into the United States in 2004 from Canada in the back of a truck, and married a U.S. citizen.  We now have two children.  My husband works in a restaurant, and we pay our taxes every year.  I have no trouble with the police or with Immigration.  Is there any way for me to get my permanent residence without leaving the country and being barred for 10 years?

Dear reader:

I will assume from your question and the fact you came to the U.S. in 2004 that you do not qualify under Section 245(i) which allows most persons who are not legal to adjust status to permanent residence in the U.S. upon payment of a fine amount of $1,000 and proof that they were physically present in the U.S. on December 21, 2000.  Lacking such qualification, you are not eligible to obtain your permanent residence at this time without leaving the country and incurring the 10 year bar.  Under present law, you are eligible to apply for an I-601 waiver of the 10 year bar following refusal of your immigrant visa by a U.S. consular officer at your overseas visa interview.  In the waiver application, you would have to show that your staying in your home country would cause your husband or a U.S. citizen or permanent resident parent extreme hardship. 

That is an option that I am aware most persons in your situation are reluctant to take.  A possible favorable future event could be the updating of Section 245(i) to a date in the future which could make you eligible for adjustment, but such a step would require congressional approval, and there appears to be much reluctance by congressional Republicans to such an action.  President Obama of course could expand the parole in place program from spouses of military members to others, but there does not appear to be much movement in that direction at this time.  (For readers who are unaware, parole in place is a process by which U.S.C.I.S. after interview paroles persons who have sneaked into the United States, thereby making them eligible for adjustment of status). 

One more promising solution that may occur in the near future is the possibility of filing the I-601 and having it adjudicated in the U.S. before attending an immigrant visa interview overseas.  U.S.C.I.S. is currently attempting to curtail the services provided to the agency by the U.S. Department of State through its consular offices.  That is the reason for the new U.S.C.I.S. rule that I-130 relative petitions by petitioners who are residents overseas will no longer be accepted at the consulates but must be mailed to U.S.C.I.S. in the States unless there is a U.S.C.I.S. office in the country of the petitioner's residence.  U.S.C.I.S. noted that the agency paid $3 million to the Department of State for its services in connection with I-130 petitions in fiscal year 2010 (10/1/09 - 9/30/10).  U.S.C.I.S. has also indicated that it wishes to curtail Department of State services in accepting I-601 filings and is mandating applicants to file directly with U.S.C.I.S. instead of the consular offices unless there is U.S.C.I.S. presence in the country of the applicant's residence.  It stated that beginning early in fiscal year 2012 (10/1/11-9/30/12), it will transition to having all I-601's filed in the U.S. in a lockbox, with no overseas adjudications.  U.S.C.I.S. also said that it is looking at the possibility of having people file I-601's in the U.S. before the immigrant visa appointment when it transitions to the lockbox, but at this time, there has been no decision. 

If U.S.C.I.S. allows not only I-601s to be filed but also adjudicated before immigrant visa appointments, such decision would allow persons like you an opportunity to have a waiver adjudication prior to making a decision whether to go overseas for an immigrant visa appointment.  If the I-601 is granted, you would basically be in the same position as anyone having a consular interview for an immigrant visa as there would be no bar to your return so long as you were not subject to other grounds of excludability.

 

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.