By Attorney Cynthia R. Exner
Foreign persons applying for permanent residency in the US who are in legal status, or have started a process before April 30, 2001 or have married a US citizen after entering legally with a visa (with several exceptions) can complete their case inside the U.S. This is called Adjustment of Status. Foreign persons who do not meet these criteria, must leave the US and complete their process at the US consulate abroad.
The Immigration and Nationality Act states that anyone who leaves the US, after being present in the US in unlawful status more than 180 days, must remain outside the US for 3 years. Anyone who leaves the US after being in the US unlawfully for more than one year must remain outside the US for 10 years. These are called the 3- and 10-year bars from the US. There are waivers available for these bars. Previously, the applicant had to leave the US, have the consular interview abroad and then file the waiver, without knowing if the waiver would be approved, or if the applicant would have to stay outside for 10 years.
In 2013, President Obama enacted the Family Unity Waiver or Provisional Unlawful Presence Waiver, which can be filed and approved inside the US. The applicant leaves the US knowing that the case has been pre-approved!
The Family Unity Waiver is available to individuals who ONLY have 3- or 10-year bar issues. If an applicant has other issues, the applicant cannot file the Family Unity Waiver. An arrest record, if the applicant was previously stopped/detained by the US or has any prior removal/deportation proceedings, can prevent the filing of the waiver.
Individuals are detained by ICE officers while trying to enter the US without a visa. Even if the applicant was detained many years ago, this will affect the Family Unity Waiver. That applicant must proceed under the old process.
If a foreign person enters the US without any visa and is detained by ICE, whether s/he was sent back to his/her country or appeared in immigration court, that person must leave the US to complete his/her process at the US consulate in his/her country. The person is interviewed abroad; is denied because s/he doesn’t have any approved waiver. Two waivers will need to be filed from outside the US. The applicant needs a waiver of unlawful presence (3- and 10-year bar) plus an additional waiver for the deportation/removal issue.
Unfortunately, some persons are detained while crossing the border from Mexico into the US. They are released, and scheduled for a future hearing before the immigration court in Texas, Arizona or California (depending on where they were detained) BUT they never return to attend the immigration court hearing. The immigration judge enters an in absentia Order of Removal/Deportation. This means that the order is entered, even though the person was “absent” from the hearing.
There is no waiver available for an in absentia Order of Removal. The applicant must attempt to reopen his/her old removal/deportation case before the immigration court. It’s not easy to reopen an old in absentia order, especially if 10 or more years have passed. If an applicant leaves the US for consular processing with an old in absentia order in place, the applicant must remain outside the US for 5 years.
Cynthia R. Exner is an immigration attorney at the Danbury office of the Immigration Law Offices of Cynthia R. Exner, 270 Main Street, Danbury, CT. If you have any questions relating to this topic, you can contact Attorney Exner at 203-830-4045 or by email at firstname.lastname@example.org.