John arrived in the United States on a fiancé visa. His petitioner, Amy, is a U.S. citizen who was introduced to him during one of Amy’s visit in Manila. After dating for a few weeks and upon Amy’s return to the United States in 2008, she immediately petitioned John for a fiancé visa.
When John arrived in the United States, he noticed that Amy’s attitude towards him changed drastically. She oftentimes leaves John alone in the house and refuses to sleep with him. When John proposed marriage to Amy, the latter rejected the proposal and instead asked John to move out of her house.
Instead of returning to the Philippines, John continued to stay in the United States with a relative and fell out of status. As a fiancé visa holder, he was informed that he may only adjust his status to a permanent visa holder if his petitioner Amy would marry her. After three months, John received news that her mother was in a serious medical condition. This news prompted John to go back to the Philippines in 2010 to take care of his ailing mother.
In 2014, John was petitioned by a U.S. employer to work as a software engineer. When his working visa petition was approved, he went to the U.S. Embassy to apply for his visa. During his interview, it was discovered that John had prior unlawful presence in the United States when he was on a fiancé visa. Can John still be admitted to the United States despite his prior unlawful presence? What steps should he take to obtain his working visa?
Three and Ten Year Bars
There are penalties attached to those who have entered and continue to live in the United States beyond their authorized stay. Generally, for visitors visa, the Customs and Border Protection (CBP) officer will give only 6 months of authorized stay and 3 months to fiancé visa holders. . If the nonimmigrants such as the visitor or fiancé visa holders stay beyond 6 months but less than 1 year of their authorized stay, they will be barred from entering the United States for 3 years. But if they stay beyond 1 year from date of their authorized stay, they will be barred from entering the United States for 10 years. These penalties are often referred to as the 3-10 year bars. Hence, those with prior unlawful presence will be prevented from receiving visas again either for 3 or 10 years depending on how long they have overstayed in the United States.
In the case of John, he overstayed for more than 6 months but less than 1 year, hence, the 3-year bar applies. He departed the United States in 2010 and 3 years passed from date of his departure. This year, he would actually be outside the United States for 4 years. Since, he stayed for more than 3 years outside the United States, he is no longer barred from receiving his working visa and re-entering the United States.
For those who are subject to the 3-10 year bars, and who find themselves in a situation where another option of traveling back to the United States is available, there is still a possible way to return. They may obtain new visas during the period of the bars but only if they file a waiver (I-601) of their unlawful presence. The immigration law provides for this waiver and approves the re-admission despite the unlawful presence if it is determined that the applicants’ U.S. citizen or green card holder spouse or parent will suffer extreme hardship if they are refused admission.
(Atty. Lourdes S. Tancinco may be reached at law@tancinco.com, facebook.com/tancincolaw, tancinco.weareph.com/old or (02)721-1963)
