QUESTION: I was removed in 2006 with a 10 year bar for unlawful presence. I also filed an I-130 on April 27, 2001 and therefore made the cut-off date to qualify for adjustment of status under INA § 245(i). My I-130 has been approved (August 2003). I am in the fourth preference category – brother/sister of U.S. citizen. It looks as though my priority date will be current in September 2012 based on the current visa bulletin.
I do not have any criminal history anywhere in the world. Only 3 traffic tickets during the 24 years I lived in the U.S. I did commit one immigration offense by changing school without INS permission. I came into contact with the INA because of wrong advice of a lawyer who suggested I file an application for "suspension of deportation" as a way of getting a green card. I was subsequently put into removal proceedings. I appealed my case to the BIA and to the 11th Circuit Court of Appeals but to no avail.
I have documented proof of favorable factors required, but not extreme hardship required for an I-601 waiver. The extreme hardship is to myself. I came to the U.S. at age 17 and left at in my 40s. I cannot find work in my country. I have had zero income for a couple of years since removal.
Can I apply for I-212 permission to reapply;I-192 waiver; and then come back to U.S. and file I-485 based on 245(i) or is there a better alternative?
REPLY: It sounds as though your case is quite complicated. While I cannot provide you with case-specific advice, I can provide you with some useful information.
As you may already know, a foreign national who has accumulated a period of unlawful presence in the U.S. for more than one year is inadmissible to the U.S. for a period of 10 years from the date of departure. There are several rules regarding the calculation of unlawful presence. Under the Immigration and Nationality Act (“INA”), a person is deemed to be unlawfully present in the U.S. if s/he is present in the U.S. after the expiration of the period of stay authorized by the U.S. government OR is present in the U.S. without being admitted or paroled. INA § 212(a)(9)(B)(ii). There are exceptions. For example, minors cannot accumulate unlawful presence. In the case of a student (F-1 visa), it is more difficult to accumulate unlawful presence because there is usually no specific expiration date ending the authorized period of stay. Rather, F-1 students are normally admitted for the duration of status (“D/S”), which allows students to remain in the U.S. until they have completed their approved course of study. The first thing to do in your case is to review your immigration history and determine the exact period of unlawful presence that you have accumulated. Only if it is more than one year do you require a Form I-601 extreme hardship waiver.
A non-immigrant waiver under INA § 212(d)(3) [Form I-192 for Canadians], does waive inadmissibility based upon unlawful presence. However, this is a non-immigrant waiver, which means that it will only apply if you are seeking admission to the U.S. for a legitimate non-immigrant (temporary) purpose. Entering the U.S. to apply for adjustment of status is NOT a legitimate non-immigrant purpose for seeking entry as a non-immigrant, which is why an INA § 212(d)(3) waiver will not help you to obtain permanent residence.
If you were ordered removed from the U.S. within the past 10 years, you will also require permission to reapply for admission to the U.S., which is applied for on Form I-212. The 10-year period begins to run on the date that the removal order became final.
If you would like to submit additional information about your case and receive a complete professional analysis, please consider contacting my office to set up a consultation.