By Attorney Farhad Sethna © 2014
As background, an alien who has entered the USA either lawfully or unlawfully and subsequently overstayed his or her visa or acquired unlawful presence in the USA is not eligible to adjust status (obtain a green card in the USA). [An exception to this disability is if the beneficiary had an immigrant petition filed by a relative or employer PRIOR to April 1, 2001 under the LIFE Act – also called a Section 245(i) application.] He or she must return to his or her home country to obtain an immigrant visa. The alien must also secure a waiver before the immigrant visa can be granted.
Under prior law, the waiver had to be applied for in the home country, that is, the alien had to leave the United States, travel to the home country, and apply for the waiver at the US consulate there. Under the I-601A Provisional Unlawful Presence Waiver process which was instituted in 2013, the alien can apply for the waiver in the United States. (As of the time of this article, the I-601A waiver was available only for spouses, children and parents of U.S. citizens, ie, immediate relatives). As the name suggests, the I-601A waiver can be used only to waive the alien’s prior unlawful presence in the USA. Once the waiver is approved by the USCIS in the United States, the alien can then travel back to the home country, be interviewed at the consulate, and since the waiver is already approved, should not encounter any delays in having an immigrant visa issued and returning to the USA.
However – and that is an important “however” – the alien must not be excludable under any other legal grounds under the Immigration Act. That means, simply because the alien has been approved for the I-601A waiver, does not automatically entitle him or her to reenter the USA if he or she has other immigration violations. There may be other violations which the I-601A waiver did not cure!
With this background in mind, let us now review two very important issues which may make an alien – even one who has an approved I-601A waiver – ineligible on some other grounds for an immigrant visa. This is NOT a surprise an alien wants to encounter after the alien has left the USA and is waiting for his or her visa interview at the US consulate overseas.
1. PRIOR UNLAWFUL ENTRY TO THE UNITED STATES:
Obviously, the alien required the I-601A waiver because he or she accrued unlawful presence in the USA. If the alien entered the USA legally on a visa, or was “inspected and admitted”, and has not left the USA since that initial legal admission, then this discussion does not apply. However, if the alien entered the USA illegally, then we have to analyze further: was that unlawful presence caused by just one single unlawful entry, or did the alien make more than one unauthorized or illegal entry?
Of course, in the discussion below we are assuming that the alien is present in the USA (else there would be no need for the I-601A waiver; if overseas, the alien would file the I-601 waiver at the US consulate).
If the alien made more than one unauthorized entry to the USA and was either ordered removed at the border [expedited removal under INA § 235(b)(1)] or was ordered removed by the immigration court in removal proceedings under INA § 240, then the alien has a serious problem. Even with an I-601A waiver, the alien may be barred from entering the United States for upto ten years. [INA § 212(a)(9)(C)(i)(II)]
An alien who was ordered removed under an expedited removal by the US Department of Homeland Security or ordered removed by the immigration court may be eligible for a waiver under INA § 212(a)(9)(A)(iii) [The alien must be in a foreign country and Attorney General of the USA must consent to the alien’s reapplying for admission to the USA].
2. UNLAWFUL PRESENCE IN THE UNITED STATES:
If the alien is present in the USA AFTER previous immigration violations accrued more than one year of unlawful presence in the USA in the aggregate (that means, the total time in unlawful presence, added up for each time the alien was in the USA), then the alien is also subject to the 10-year bar to reentry [INA § 212(a)(9)(C)(i)(I)]. The only waiver available to this 10-year bar is for Violence Against Women Act (VAWA) petitioners. [INA § 212(a)(9)(C)(iii)].
To summarize, thus far:
IF the alien (a) was unlawfully present in the USA for a total period of more than one year after a prior immigration violation, OR
(b) departed the USA under a final order of removal, AND
(c) re-entered the USA without inspection,
The 10-year bar under INA § 212(a)(9)(C) will apply. So for the 10-year bar to apply, an alien must have either (a)+(c) above, or (b)+(c).
IF THERE IS A PRIOR ILLEGAL ENTRY, WHAT SHOULD AN APPLICANT DO?
The first step in evaluating whether the 10-year bar applies in the case of an alien with prior unlawful presence or prior illegal entry or entries is whether or not the alien had only one prior illegal entry to the United States or whether the applicant had more than one prior illegal entry to the United States. In other words, did the applicant illegally reenter the United States after being removed, or is this the first and only illegal entry to the USA?
The second, related determination is whether the alien accrued more than one year of unlawful presence in the USA after a prior immigration violation.
If either answer is “yes”, we may have a problem.
HOW DOES A “YES” ANSWER AFFECT THE I-601A WAIVER?
To understand the effects of a prior illegal entry or reentry to the USA, one first needs to understand that there are three types of removals. The first is simply a voluntary removal. (Also called “administrative voluntary departure”). This means that the alien is apprehended at or close to the border and voluntarily determines to relinquish his or her “application for admission” to the United States. This is logical, since the alien entering illegally did not have permission to be in the USA in the first place. If the US Customs & Border Protection determines that the alien is not an illegal reentrant, the USCBP has the legal authority to permit the alien to withdraw the application for entry under INA (Immigration & Nationality Act) § 235(a)(4) and return voluntarily to his or her home country. In that case, the USCBP will still probably collect information about the alien including the alien’s name, birth date, and most importantly, biometric information including fingerprints and photographs.
The second type of return occurs when an alien is apprehended at the border and is then ordered removed by the US Customs & Border Protection. This is called “expedited removal”. Expedited removal is a specific order of removal under INA § 235(b)(1). The alien is issued an “A” number, fingerprinted, photographed, and returned under the order of the US Customs & Border Protection.
The third type of removal is where an alien is apprehended in the United States and is ordered removed by an immigration judge after removal proceedings under INA § 240.
WHAT IS THE DISTINCTION BETWEEN THESE THREE TYPES OF REMOVALS?
The second two types of removal- removal after an order of the US Customs & Border Protection or removal following an immigration judge’s order are removals that trigger the ten-year bar. These are not considered to be voluntary removals, and therefore, the alien is subject to the ten-year bar from reentry to the United States as having made a prior unauthorized reentry to the US.
However, the first type of return – the voluntary return – is not a bar to reentry after the grant of an I-601A waiver. While the information may show up in the USCBP computers as well as in the US Department of State’s computer system, since it was a “voluntary return” and not an expedited removal order or an order by an immigration judge, the alien may obtain the I-601A waiver, be granted an immigrant visa, and return to the USA.
WHAT IS THE IMPLICATION OF THESE RULES?
The implication is extremely severe: Whether through accrual of more than one year of unlawful presence, or if removed from the USA – either expedited removal by the USCBP or an order of removal from the immigration court – the alien is barred from legal reentry to the USA for a minimum of 10 years. Therefore, before leaving the USA on an approved I-601A waiver, it is very important for the alien to make sure that he or she does not have a prior order of removal from the United States which would subject him or her to the ten-year bar. Simply because the USCIS has approved the I-601A waiver is NOT a guarantee the alien will be readmitted legally to the USA.
Any individual applying for an I-601A waiver should be very honest about his or her prior unlawful entries to the United States. If the applicant does not have all the facts, it is critical to obtain as many facts as possible before making a determination whether to leave the United States to apply to the immigrant visa or not. If the facts indicate that the applicant is not subject to the ten-year bar, then the applicant should take adequate proof of these facts with him or her to the consulate at the time of the interview to disprove any contradictory information or incorrect facts which may be accessible by the consular office.
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.