THE TIMING OF YOUR OVERSTAY AND OR OF ANY APPLICATION TO REMAIN IN THE US IS CRITICAL!

What is the “time allotted” for your stay at the time of inspection and admission, and where can I find it?

The time allotted to remain in the U.S. for a foreign national legally coming into the U.S. is usually shown in the passport itself. It may also be in a sticker or other document attached. The class of admission of the admittee is also offered (visitor, work, education, etc.), generally as a stamp in the passport placed there at the time of initial inspection and admission.

Some classes of original admission themselves also have restrictions against applying for adjustment of status to permanent resident (“green card” holder). Read yours carefully or send us a copy for review at no cost.

For our purposes here, we will assume that a foreign national has legally entered the U.S. under some of many possible statuses’ but has stayed, without extension or other permission, beyond the period of stay in the U.S. they were first allowed when entering.

If you have overstayed your travel/ visitor, fiance, work visa, or other entry documents, regardless of type, you may have several penalties or consequences resulting from this Overstay, and the Law Offices of Toma Makedonski may be able to help you with them. We have set out here information regarding some of these issues. Each person’s case is unique and may have issues other than those discussed here. Amerilawgroup is happy to discuss the details of your case in our initial free consultation.

PRIVACY AND SECURITY ARE VERY IMPORTANT TO US. INFORMATION OF ANY SORT WHICH WE MAY DISCUSS OR RECEIVE IS COMPLETELY PRIVATE AND IS COVERED ENTIRELY BY THE ATTORNEY-CLIENT PRIVILEGE. YOU MAY CALL US WITH CONFIDENCE.

WE LOOK FORWARD TO SOLVING YOUR IMMIGRATION PROBLEMS QUICKLY, EFFICIENTLY, AND CONFIDENTIALLY

Consequences of Unlawful Entry

Ineligibility for a Green Card through Adjustment of Status process

An individual will not be able to obtain a green card through the Adjustment of Status process (i.e., without having to leave the U.S. and process the case at a consulate abroad) if s/he:

1. entered the U.S. without permission; or
2. entered lawfully but then overstayed the allowed time granted and is now out of valid immigration status; or
3. worked in the U.S. illegally (without permission from CIS), unless the person is an immediate relative of a U.S. citizen; or
4. is a “Transit without a Visa” holder or a holder of a Visa Waiver (W.T. or V.T.) unless an immediate relative of a U.S. citizen; or
5. entered the U.S. on a K-1 fiance visa but then seeks to apply for adjustment of status on a different basis than the marriage; or
6. An immigrant visa number is not immediately available (applicant must have a current priority date or be an immediate relative of a U.S. citizen.

The above are the most common reasons a person may not be eligible to apply for adjustment of status.

Exception: Amnesty and 245(i)

Section 245 (i), which was available until April 30, 2001, allowed any person who entered the U.S. illegally or who had overstayed a visa and was now out of status to apply for a green card through adjustment of status, despite being unlawfully present, if the noncitizen had a family member or employer willing to sponsor them for an immigrant visa and filed this application before the April 30, 2001 deadline.

Grandfathering under 245(i). Even though 245(i) is expired and no longer available to allow adjustment for those unlawfully present, some noncitizens may still be able to take advantage of this law and not have to leave the U.S. for the consular process if an immigrant visa case was filed for them before the deadline. Still, the person now wishes to file a different immigrant visa case due to changed circumstances (i.e., a new employer or new marriage). The original lawsuit had to be “approval when filed” for you to use a new case to take advantage of the expired 245 (i) amnesty-type provision.

This is a legal standard best explained by an immigration lawyer, who can better determine if you can file a new case and take advantage of grandfathering.

Immigrants with prior deportation orders or immigration violations who live within the 9th Circuit and who are married to U.S. citizens or lawful permanent residents may be able to get their green cards, despite their prior immigration violations. This new case law may benefit California, Arizona, Nevada, Alaska, Hawaii, Montana, Idaho, Oregon, Washington, Guam, and the Mariana Islands.

Consequences of Unlawful Overstay

The 3 and 10-year bars to Reentry

The 1996 Illegal Immigration Reform and Responsibility Act (IIRAIRA) created three years, ten years, and permanent bars on admission to the U.S. for various immigration status violations.

These bars apply widely and affect immigrants who have family in the U.S., have worked and paid taxes in the U.S., and in many cases are otherwise eligible for permanent resident status.

The three-year bar for Reentry into the U.S.: The three-year bar applies to individuals who have been unlawfully present in the United States for a continuous period of more than 180 days but less than one year and who voluntarily depart the U.S.

The ten-year bar for Reentry into the U.S.: The ten-year bar applies to individuals unlawfully present in the U.S. for an aggregate period of one year or more who depart voluntarily. Unlawful presence begins to accrue when the period of authorized stay expires or after an entry to the U.S. without inspection. (illegal entry)

The following classic example highlights the excessive harshness of these bars:

If the immigrant is married to a U.S. citizen or lawful permanent resident, a WAIVER MAY BE AVAILABLE for 3 & 10-year bars.

Unlawful Reentry/Attempted Reentry after previous Unlawful Stay/Entry in the U.S.

Any person who has ever been ordered removed (or has resided in the U.S. unlawfully for more than 1 year in the aggregate), leaves the United States, and then returns or attempts to return without being lawfully admitted must remain outside the U.S. for 10 years before being able to re-apply for an immigration benefit or Reentry. This law was not in effect until April 1, 1997.

Consequences of working unlawfully on an expired temporary visa

An employment-based green card applicant would not be able to apply for a green card through the adjustment of status process in the U.S. (i.e., will have to consular process) if s/he worked without authorization (worked illegally) for more than 180 days. A family-based green card applicant, if filing based on any relationship other than an immediate relative of a U.S. citizen (spouse, child under 21, parent), will not be able to use the adjustment of status procedure to apply for a green card in the U.S. but will have to consular process if the applicant ever worked without legal authorization while in the U.S.