The issuance of an immigrant or temporary visa by the U.S. Embassy is a privilege and may be revoked for any valid reason. A visitor’s visa holder who uses and violates the terms of the visa by overstaying beyond the authorized period may face long-term bars to re-entering the United States. If this happens, will an individual be able to overcome these bars and re-enter the United States again?
Jenny entered the United States on a B2 visa to visit her aunt in California. She had just graduated from college and her trip to the United States was a graduation gift from her mother. She was permitted to stay in the United States for 6 months. After a few months, Jenny’s aunt told her to look for a U. S. employer who will sponsor her for an H-1B visa. Unfortunately, she could not find an employer before her B-2 visa expired. At the urging of her aunt, Jenny decided to remain in the United States and overstayed her visa. For the next year and a half, Jenny worked as a caregiver. It was difficult for her to find steady employment and she bounced around several different care home facilities. Jenny was stressed from having to look for work and not being paid well because she did not have any employment authorization. She finally decided to return to the Philippines and live with her mother.
After a few years, Jenny met Tom, a US citizen. He was visiting his relatives in Manila for the summer. Jenny and Tom fell in love. After Tom returned to the United States, Jenny and Tom continued their relationship long distance. After a short period, Tom and Jenny got engaged. Tom wants to petition Jenny for a fiancé visa.
Will Jenny encounter problems from her one and a half year of overstay during her last trip to the United States?
3/10 Year Bars
Jenny will face problems when she applies for a fiancé visa at the US Embassy because she overstayed on her last trip. Once Jenny’s B-2 visa expired, she became out-of-status and began accruing “unlawful presence”. In other words, she was considered undocumented. Under U.S. immigration laws, the period of unlawful presence in the United States accrued after April 1, 1997 will trigger the 3/10-year bar. This means that if an individual has a period of unlawful presence of more than six (6) months but less than one (1) year, and voluntarily departs the United States before removal proceedings commence, that individual will be inadmissible or be barred from entering the United States for three (3) years. On the other hand, if the period of unlawful presence is more than one (1) year, the individual will be inadmissible to the United States for ten (10) years. This is often referred to as the 3/10 year bars. The periods of unlawful presence are not counted in the aggregate, but is accrued during a single continuous overstay.
Filing A “Waiver”
Fortunately, there is a way to overcome these bars to re-entry. Waivers are available to re-enter the United States again. If the individual who is subject to the bar is applying for a temporary nonimmigrant visa such as a tourist visa again or a student, H-1B or L visa, the individual may seek a 212(d)(3) waiver of the unlawful presence so long as there is other ground to bar this individual from re-entering. The waiver is discretionary. The three criteria for granting a waiver under § 212(d)(3) are set forth in the Matter of Hranka: (1) The risks of harm in admitting the applicant; (2) The seriousness of the acts that caused the inadmissibility; and (3) The importance of the applicant’s reason for seeking entry. If the waiver is granted, it will be valid for up to five (5) years maximum.
In cases where the individual is seeking an immigrant visa or a green card, the individual will need to apply for an I-601 waiver. This waiver is only available if the individual has a “qualifying relative” who will suffer extreme hardship if the individual is not admitted to the United States. Qualifying relatives are limited to US citizen or lawful permanent resident spouses or parents. Unfortunately, US citizen or lawful permanent resident children are not considered qualifying relatives.
How the Waiver Applies to Jenny
In Jenny’s situation she was unlawfully present in the United States for a year and a half and is therefore subject to the 10-year bar and may not be allowed to enter the United States. Even though the fiancé visa is a temporary or a nonimmigrant visa, a 212(d)(3) waiver is not appropriate for this type of visa. The fiancé visa is a hybrid type of visa where the fiancé visa holder will eventually be seeking a green card once in the United States. Jenny will therefore need to apply for an I-601 waiver.
Jenny does not have any “qualifying relatives” because she is not yet married to Tom and her parents are neither US citizens nor lawful permanent residents. However, under the regulations, non-citizen fiancés are permitted to use their US citizen fiancé as a qualifying relative if it is determined that the inadmissibility can be waived after marriage to the US citizen. Jenny will only be granted a waiver if she can prove that Tom will suffer extreme hardship if she is not permitted to enter the United States. If the waiver is granted, it will be conditional.
Gaining approval on a waiver will require submission of substantial evidence that will show extreme hardship to the US citizen qualifying relative. When a relationship is still new, hardship may oftentimes be difficult to prove. Although there are indeed waivers available for “unlawful presence”, it is still easier for one to not undergo the need for a waiver by not violating any of the terms of their visa.
(Atty. Lourdes Santos Tancinco may be reached at law@tancinco.com or at 721 1963 or visit her website at tancinco.weareph.com/old)
