Joselito was a supervisor in one of the departments of a financial institution in charge of foreign remittances . He was invited by their US based company to visit their San Francisco office. Last year, Joselito entered the US on a B1/B2 visa and was granted three months of authorized stay. He did not leave the US at the expiration of his visa and Joselito overstayed for more than six months.
He engaged in unauthorized employment as a “health care worker” for a home companion agency. It was through his employment where he met his future wife, Marita, a US citizen. Joselito and Marita had a relationship for more than a year until Joselito was taken into custody by Immigration and Customs Enforcement (ICE) during one of their raids. Joselito was brought into removal/deportation proceedings. He sought voluntary departure and was granted four months to leave the US.
Joselito failed to leave within four months and instead married Marita. A petition was filed by Marita but this was denied because of Joselito’s failure to depart the US on voluntary departure. He was again taken into custody and this time, he was deported without hearing.
Marita wants to petition Joselito for green card and wants him to return to the US with him. Does Joselito have a chance of returning to the US?
Voluntary Departure
Voluntary Departure is a relief that may be availed of by a noncitizen who is put into deportation proceedings. There are three different stages at which the Department of Homeland Security (DHS) or an Immigration Judge (IJ) may order voluntary departure: before removal proceedings are initiated, before completion of proceedings, and at the conclusion of proceedings.
This relief is taken in lieu of a deportation order to ease the process of returning to the United States after departure. In the past, one of opted for voluntary departure may find it beneficial than accepting an order of deportation. It is not always the case these days and that the ability to return is guaranteed.
It is true that if there are no grounds for inadmissibility or bars to admission to the United States, the noncitizen who accepts a voluntary departure may return to the US as long as they hold a valid nonimmigrant or immigrant visa issued after arrival in the US. However, if there were grounds for inadmissibility prior to accepting voluntary departure, it will be difficult to return to the US.
Grounds for Inadmissibility
Inadmissibility refers to those factors that exist in an individual case that bars them from receiving a US nonimmigrant or immigrant visa. There are numerous grounds of inadmissibility ranging from health care to criminal grounds. The most popular grounds for inadmissibility are the three and ten year bars.
Bar arises because of prior behavior of the individual that constitutes what you call the “unlawful presence” status.
These bars are classified based on the period of time the individual is prevented from receiving visas. These are what you call the (1) three year bar; (2)10 year bar; (3)5 year bar and (4) lifetime bars. They are equivalent in criminal law of “sentences” except that they do not refer to imprisonment but are referred to indicate inability to get visas for a certain number of years.
The harsh consequence of grounds for inadmissibility is that they result in long time family separation. They act as penalty for wrongdoings even if the “wrongdoing” was unintentional.
Limited Value of VD
Voluntary departure (VD) has limited value and may not prevent return to the US if there was no prior inadmissibility. This happens for instance in the case of a person whose unlawful presence is only for less than six months. This person may accept the voluntary departure and must indeed leave before expiration of the voluntary departure in order that he may return without incident.
It is not all loss for those who are faced with the bars to inadmissibility. The immigration regulations permit the filing of “waiver” applications for those facing certain bars. This waiver requires meeting all the eligibility requirements including proof of “extreme hardship” to the US citizen spouse or parent.
Harsh Consequence
Joselito left on a removal order and is now barred for ten years before he may be able to return to the US. He should not have taken a voluntary departure if he did not have the intention to depart the US. Now that he is “deported” he needs to file for Waiver of Inadmissibility and the Application for Permission to Re-enter should a visa become available.
Most of the time noncitizens in the US who had fallen out of status are caught between a rock and a hard place when deciding whether to depart voluntarily or stay in the US unlawfully. In both situations, the noncitizen bears harsh consequences because of their lengthy unlawful presence. A significant number of them decide to stay in the US than working their way to return to the US. They maintain that they would rather be with their loved ones in the US even if their stay in unlawful. They become part of the 12 million undocumented hoping for the passage of the Comprehensive Immigration Reform under Obama’s administration. After the controversial health care bill is passed, it is forthcoming.
(Tancinco may be reached at law@tancinco.com or at 887 7177).
