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Waivers, Appeals
& Litigation
December 4, 2000
Q.
As
a teenager, I entered the USA from Russia to be a nanny. I didn't
know I needed a work permit, so I told the border control the truth.
I was deported and banned. Now I am engaged to be married to a US
citizen. Is there anything I, or a lawyer can do now, 7 years later?
A.
Normally
someone who is ordered deported by an immigration judge cannot
return for at least 10 years, unless they obtain special permission
from the Attorney General. You should file an "Application for
Permission to Reapply for Admission into the United States after
Deportation or Removal" on
INS Form I-212.
It
is very important that Form I-212 be well-documented before filing
your application, and that the person preparing the Form on your
behalf understand the law well.
Q.
I
am worred that the INS will deny my case because they don't believe
my marriage was genuine – I am 12 years older than my husband.
How difficult is it to appeal, and what are the steps?
A.
First, the INS
must approve a spousal visa petition if the marriage was genuine at
the time of the marriage. A 12-year age difference is only one of
many things that will be considered by the INS in determining
whether the marriage was genuine.
Second, it is important to show that the marriage was known about by
friends and family, that you and your husband live together and that
you are keeping your financial business (i.e. income tax returns,
insurance policies, checking and bank accounts) together.
However, if a marriage petition is denied by the INS, the petitioner
(the US citizen or permanent resident spouse) may appeal the
decision to the INS administrative appeals board.
If this appeal is denied, the petitioner may then go to
Federal Court to try and change the decision.
Q.
My
situation is that I am recently married to my illegal alien
boyfriend. What do we need to do next? I am a US citizen. Will he be
deported? My husband has been here illegally for almost four years.
A.
If
your husband entered the U.S. on a visa and overstayed or violated
his status, he can adjust his status to permanent resident without
leaving the U.S.
However, if he entered the U.S. without inspection by a border
official, he is ineligible to get a green card while remaining in
the U.S. After your visa petition (Form I-130) for him is approved
by the INS, he will need to go abroad to apply for permanent
residence. However, he will be subject to a ten-year bar of
inadmissibility. Therefore,
to get around this, you will need to submit a waiver of the ten-year
bar on his behalf. You should complete and thoroughly document that
you will suffer "extreme hardship" if your husband is
forced to live outside the United States for 10 years. Submit an
"Application for Waiver of Grounds of Excludability" (Form
I-601) when requested by the Consulate.
Fortunately most of such waivers are approved. Unfortunately, the
State Department must send the waiver application to the INS, where
backlogs of 9-12 months are common. During this time, your husband
must remain abroad.
FOR
MORE INFORMATION:
Contact
John Byrley at tel: 410-719-1501.
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