How can I return with an immigrant visa after living in the US illegally?
Aggie R. Hoffman
A recurring theme, with some variations, of questions received asks “I lived in the U.S. for many years after my visa expired. I left the country, but now I want to return. Can I?” The short answer is “perhaps” under very limited circumstances. The possibility depends on whether you want to return for a visit, temporary employment, or to immigrate.
Basically, there are two types of entries into the U.S.: nonimmigrant and immigrant. An immigrant visa (I.V.) involves a cumbersome process while a nonimmigrant visa (N.I.V) is a short application and usually not subject to any quota. What makes the NIV challenging is that the law presumes that every applicant is an intending immigrant and therefore subject to the prolonged process which usually requires petitions by a close relative or a U.S. employer.
So, the burden is upon you, the applicant, to establish that you seek to enter the U.S. for a temporary purpose. The answer to that question is made as a part of the visa application process at a U.S. Embassy or consulate in your home country.
Proving a temporary purpose relies on the establishment of evidence that you are likely to depart the U.S. at the end of your temporary stay. For the purpose of an answer in this article, it is assumed that the application is for a tourist visa. In that connection, the U.S. consular officer is interested in examining your ties to your home country.
The officer wants to know what you are leaving behind. Are you married? Do you have children? Do you own property? Do you have a savings account?
What kind of job /position do you have? How long have you been employed there and what is your salary? The more “glue” you demonstrate to your home country, the greater the likelihood that your visa will be granted.
Also factored into the final consideration is the general political and economical stability of your home country, as well as the record or percentage of other visa applicants who return from visits.
Your own prior visa history is very relevant to your new NIV application. Every NIV application asks for a list of prior residence and its dates, as well as prior visits to the U.S.
This is to determine what kind and length of prior presence you had in the U.S. Information that reveals an overstay of only one day of any visa results in the cancellation of a still valid visa. Worse yet, it may serve as a basis to deny a new visa on the ground of immigrant intent–i.e. that you are unlikely to return upon the expiration of your visa, or at all.
Even more severe is the penalty of 3 or 10 years of inadmissibility if the overstay is 180 days or 1 year, respectively. Even when the period of inadmissibility has passed, the visa may still be refused on the ground of immigrant intent. In other words, you violated the law once, and there is no reason to believe that you will not be a repeat offender.
It does not matter that you were a law-abiding person during your overstay period or that you used your true identity when you worked or that you paid your taxes.
The key is that you violated the terms of your visitor visa by staying longer than allowed and perhaps even by working without authorization.
There is no appeal from a decision of the consular officer, and in general, a person outside the U.S. has no legal rights in the U.S.
In my next article I will discuss returning to the US as an immigrant after unlawful presence in the U.S.
CAVEAT: The above is not a complete legal analysis, does not constitute legal advice, nor should it be construed as such. For a case specific analysis, consult an experienced immigration attorney for a private and extensive review of the facts of your case.
Aggie R. Hoffman is a Certified Specialist in Immigration and Nationality Law, licensed by the State Bar of California and certified by the Bd.. of Legal Specialization. Ms. Hoffman has over 25 years of experience in a variety aspects of immigration law, from employment based (investors and PERM) to family immigration. Her victories include cases in Immigration Court, Board of Immigration Appeals, and Ninth Circuit Court of Appeals, focusing on reopening proceedings based on ineffective counsel. For more information, see www.arhlaw.biz .