Published on the World Journal Weekly on March 20, 2016

Q&A 1

How Can My Fiancé Who Entered the Country Illegally and Has a Bench Warrant Get the Green Card?

I have been going out with my fiancé for over 1 ½ years and we will be getting married soon. He is illegal, however, having entered the country illegally 5 years ago. In addition, he had a traffic incident a couple years ago, did not go to court because he was afraid that he would be deported, and now has a bench warrant against him. What to do?

Dear reader,

I assume that you are a US citizen or permanent resident. If a citizen and he entered the country legally, he may be eligible for adjustment of status. If a permanent resident, he would not be allowed to adjust status even if he entered the country legally unless he had the benefits of §245(i) under which applicants can pay a fine amount of $1000 to adjust status as long as they have a basis to do so, had a labor certification application or immigrant visa petition pending by April 30, 2001, and were physically present in the US on December 21, 2000. If he is not adjustable, you may consider the I-601A provisional waiver program under which he would interview overseas for the immigrant visa, but only after applying for and receiving an approval of a waiver of the unlawful presence bar through showing that a denial would cause extreme hardship to you. In the above situations, you would of course have to be married. Regardless of which way he may immigrate, he should satisfy the bench warrant as he will not be allowed to receive a green card while he has pending criminal proceedings.

Q&A 2.

F-2 Overstay Now Being Processed for Immigrant Visa Interview Has Marijuana Conviction – Can He Go?

My brother, a U. S. citizen, applied for me about 11 years ago. I came into the country as an F-1 student and my family under F-2 visas. We all overstayed. Now we’re being scheduled for our immigration interviews in Hong Kong. The problem is that my 17-year-old son has a conviction for possession of marijuana. If he goes, will he be allowed to come back?

Dear reader,

Possession of marijuana is generally a disqualifying offense, but possession of 30 g and less is waivable under the immigration laws. In addition, a possession offense may also be forgiven for a person who was placed under the federal first offender act program. (For readers who may be concerned that the family is barred for 10 years because of their overstay in the U. S. for over one year, they fall under an exception as they do not have time certain visas and unless U.S.C.I.S. has given the father a denial or he has received an order from an immigration court, the 10 year bar does not apply to F-1 students and their families).

Q&A 3.

Adult Overstayed in U. S. From Ages 4-16 and Given Voluntary Departure – Can He Return Now?

My parents brought me to the U. S. when I was 4 years old under a visit visa and I stayed until I was 16 years of age at which time we all went back to China after being granted voluntary departure by an immigration judge. Now I am 22 years old and want to come back to the U. S. Am I barred from coming back for 10 years because of my 12 year overstay and the voluntary departure? Can I get a visiting visa?

Dear reader,

As you departed the United States when aged 16, you were not yet at the age at which you would incur a 10 year bar for unlawful presence. Voluntary departure by an immigration judge at that age would not be cause for such a bar. A 10 year bar upon reentry is placed upon most individuals who stay in the U. S. illegally for one year, but does not apply to those not yet 18 at the time of leaving the U. S. It would be up to the American consular officer with whom you interview as to whether he or she will give you the visiting visa in the exercise of discretion. While the unlawful stay and voluntary departure are not bars, they are negative factors for the consular officer to consider.

Copyright © 2003-2017 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.