Rock Law Group, plc

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IMMIGRATION FAQ’S AND IMPORTANT CONCEPTS

Disclaimer: None of the information contained on this website should be taken as legal advice or authority, and may not intended to encourage anyone to stay in the United States without documentation.

1.What is the difference between and immigrant and non-immigrant visa?
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2.What does it to be “undocumented”?
This term generally means the individual entered without authorization or legally but overstayed beyond the period of authorized presence.

3.What is the “period of authorized presence”?
This is the period someone has been given to be in the United States. It is written on the I-94 Card given at the time of entry. This period can be less than the period of the visa.

4.I have a tourist visa for 10 years. So can I be in the U.S. for
ten years?
The period of your authorized presence will be on the I-94 card given to you when you entered. Ordinarily the period will be 60 or 90 days for tourist. If you stay beyond this period you are accruing what is called “unlawful presence.”

5.What is “unlawful presence”?
A person will be considered unlawfully present if they stay longer than the date written on the I-94 card, the first day that the person enters without authorization or if a status or visa is revoked by the immigration authorities.
6.Why is unlawful presence important?
Person who have 1 day of “unlawful presence” are not permitted to change status to another type of non-immigrant visa. People with unlawful presence also may not be able to adjust status depending on the number of days of unlawful presence, the basis of their adjustment, and if they are 245i eligible.

Also, an individual might accrue the 3 year, the 10 year or permanent bar if the person accrues sufficient unlawful presence and leaves the U.S.

7.What are the 3 and 10 year bars?
A person who accrues between more than 180 days but less than 1 year of unlawful presence who leaves the U.S. will trigger the 3 year bar.

A person who accrues more than 1 year of unlawful presence and then leaves the U.S. will trigger the 10 year bar.

8.What is the permanent bar?
Applies to a person who leaves the U.S. and re-enters without inspection after having accrued more than 1 year of unlawful presence.

9.Are there waivers to the 3 and 10 year bar and permanent bar?
The waiver to the 3 and 10 year bar is based upon extreme hardship to a U.S. citizen or lawful permanent spouse or parent.

A person cannot apply to reenter the U.S. if they are denied a visa or status based upon the permanent bar for 10 years.

10.“I entered legally but overstayed, never left and am now married to a U.S. Citizen. Can I get papers in the U.S.?”
You appear to be eligible to adjust status. At this point your immigration attorney would need to evaluate whether there are any other bars to admissibility.
11.“I entered on a J-1 visa and have an I-94 stamped D/S. But I overstayed for 2 years. Can I get an H-1B visa?”
You would not be eligible to change status to H-1B because you overstayed your visa. But you did not accrue unlawful presence. If your I-94 was marked D/S, then would not have accrued unlawful presence even if you stayed longer than the period of the J-1 unless the immigration authorities revoked your period of stay. Therefore, you would have to leave the country to obtain a visa from a U.S. consulate. You could go to a consulate in Canada or Mexico as long as you never accrued unlawful status while you were here on another visa.

12.My employer says he can get me a temporary work visa even though I have been here undocumented for years. I think the visa is an H-2B. Can I get the visa?
These situations usually involve seasonal visas. You would have to leave the country to apply for the visa. At the time you apply for the visa you will have to complete forms for the Department of State so they can determine your eligibility. These forms are the DS 156, 157 and 158. These forms will ask you where you have been residing in the United States. If you put on the forms that you were residing in the United States then you will trigger the 3 or 10 year bar, depending on how long you have been in the United States. However, if you misrepresent that you were living abroad this entire time then you will be committing fraud.
If you want to pursue one of these cases after you have been undocumented in the United States, then you should contact a knowledgeable immigration lawyer who can advise you how to apply for a legitimate non-immigrant waiver for the 3 and 10 year bars. The waiver is commonly referred to as a 212(b)3 waiver. You would have to disclose your undocumented presence in the United States on the DS 156, 157, and 158 form and then apply for a waiver of the 3 and 10 year bar. But simply representing that you were not in the United States is not an application for a waiver.

13.Can I find out if I have an immigration record or if I have an outstanding Order of Deportation?
There are generally three ways to determine if an individual has a immigration background. If the person has been arrested and fingerprinted then the removal, exclusion or deportation may appear in the FBI central records system. You can send a fingerprint card to the FBI CJIS Records Department to obtain this report. You can have the results sent “Care Of” another person according to the FBI’s instructions.
If you were issued an A# in your immigration case then you can call the Executive Office for immigration Review (EOIR) case status line at 1-800-898-7180. This is an automated number that will provide you with the status of any cases you have.
You can also request a copy of your records from the USCIS and Customs and Boarder Patrol using a Freedom of Information Act (FOIA) form. These requests can take up to a year to process.

14.How do I determine if my priority date is current?
Each month the Department of Status publishes the updated Visa Bulletin that shows current priority dates. In order to determine your priority dates, you must first know your category. The following is a brief description of the categories.
Family-based
1st - Unmarried sons and daughters (21 years of age and older) of U.S. citizens
2A - Spouses and children of lawful permanent residents (“LPR)
2B - Unmarried sons and daughters (less than 21 years of age) of LPRs
3rd - Married sons and daughters of U.S. Citizens
4th - Brothers and sisters of adults U.S. Citizens
**Notice there is no category for married sons or daughters of LPRs. Thus, an I-130 filed by an LPR on behalf of his or her child will be cancelled if the child marries after the child turns 21.
Employment-based
1st - Priority workers
2nd - Members of the professions holding advanced degrees or persons of
exceptional ability
3rd - Skilled professionals in jobs requiring at least 2 years of experience and “other
workers”
**”Other workers” are limited to 10,000 per year. This is the category for unskilled workers. Therefore, a maximum of only 10,000 visas are available to unskilled workers annually.
If the receipt date noted on your I-130 is prior to the current priority date stated on the Visa Bulletin, then your priority date is current. The Visa Bulletin is published in the middle of the month prior to the effective date of the report. Often, priority dates retrogress because more people than there are visa file during any particular month. Therefore, it is important for you to file your adjustment of status application as soon as your priority date becomes current - while it is still current.
Certain classes, such as EB3 (employment based 3rd category) fluctuate between Current and Unavailable. Therefore, you should be constantly watching to see if this category comes current as it might become Unavailable the very next month and might stay Unavailable for the unascertainable future.

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Attorneys licensed in Kentucky and Georgia. Limited Practice of Federal Tax and Immigration in all other states.