Immigration Waivers and Appeals for Unlawful Presence, IIRIRA, and Grounds of Inadmissibility
Our immigration attorneys and immigration lawyers receive calls regarding many different issues for which people would like immigration waivers. Some want a 601 waiver, others request 212 waiver. Some of these immigration waivers and Appeals are possible and some are not; call us as soon as possible so we can go over the details with you. From anywhere in Canada or the U.S, call 1-877-223-4684 or 619-793-4827 and we can analyze your immigration waiver, denial, or appeal issue in order to ascertain what options are open to you. It is imperative to call an immigration attorney as soon as you receive the notice. The cases are very time consuming to prepare and you have very strict deadlines. Please share with us the whole story and do not ignore any facts; you never know what is important and can make a big difference. Here are some common areas we receive calls about when it comes to immigration waivers :
Immigration Waivers and Appeals: UNLAWFUL PRESENCE
If you have stayed one year past the date you were supposed to leave (usually on your I 94, the white thick piece of paper you receive from the immigration officer when you enter the country), you are banned from re-entering for 10 years without an immigration waiver. If you overstayed by 6 months, it is a 3-year bar. There are certain exceptions, but very few. One exception is for people who marry U.S. citizens and file for Adjustment of Status (the Green Card).
However, if there is something else in your past you need to address (i.e. criminal history or suspected of working without authorization), you shouldn’t just ignore it as waiting outside the country for 3 or 10 years does not guarantee entry after that time. If you have a criminal history, expungements are not recognized for purposes of immigration. You may qualify to have your Conviction Vacated. This should be discussed with your lawyer. More importantly, call us BEFORE you have your criminal trial as we can advise on the consequences of different strategies. There is no extra charge for us to work with your criminal lawyer in a team effort to help you out in the best possible manner.
The IIRIRA and Immigration Waivers and Appeals
This is the law that put into effect the 3 and 10-year bars. It affeted many other areas. Here are some of them:
Conviction for high-speed flight from immigration checkpoints, domestic violence, stalking, child abuse, child neglect, violating court protective orders regarding prevention of domestic violence.
If you falsely claim to be a citizen, you are subject to deportation.
Other important changes include the fact that Suspension of Deportation had been eliminated under Sections 212(c) and 244. This was a way to avoid deportation, it was ‘suspended’. In their stead, we have a 7-year Cancellation of Removal (It has the same effect- you are not deported) provision for people with green cards and a 10-year Cancellation of Removal for people who do not have a green card. Aggravated felons do not qualify for either of these and people who have committed any crime must show “exceptional and extremely unusual hardship”. However, if a crime is committed by the person or an NTA (Notice To Appear …. this is in Court) is served on them, the time stops counting towards the 7 or 10 years.
Aggravated Felonies: Always a serious issue in immigration. Unfortunately, many crimes that are not Aggravated Felonies in a certain state are considered aggravated felonies for immigration purposes. Aggravated felonies were changed so that the definition now covers most felonies. Also, thefts and violent crimes that carry a one-year sentence or more are now considered aggravated felonies. In many cases, even if your felony is not aggravated, there is very little an immigration lawyer can do for a felony conviction. Immigration waivers may not be helpful in these circumstances.
Importantly, they removed judicial review for people convicted of some crimes, discretionary bond and detention. On this note, they also made the change regarding the definitions of conviction and sentencing. For example, sentencing is now defined as the time ordered by the Court, regardless of whether or not the sentence or execution of it were withheld.
An area of great concern is that nonimmigrants now have their visas automatically invalidated if you overstay by even an hour. Under Section 222(g), these person can no longer Change Status (this is the term for people going from one visa to another, such as a B-2 visitor going to an H-1b work visa) inside the United States. The problem with this is that once you are outside the country, they have you, and if they feel you should not be let back in, you have a problem.
A last major change as a result of IIRIRA is that 4 major agencies must report (Section 404) to the USCIS (Immigration Dept) 4 times a year if they know that you are unlawfully present. These agencies are: HHS, HUD, SSA, and DOL.
CRIMINAL ISSUES: We are often asked by our clients what the difference is between being inadmissible and deportable. Someone who is in this country under certain circumstances can be asked to leave, and that is deportation. Someone who is outside this country trying to enter could be inadmissible (previously called excludable). This means that if you have a green card, each time you re-enter the country you are seeking admission. If you have a criminal record, it could prevent you from entering. If that is the case with you, visit or call us immediately, especially if you intend to travel. The same rule applies to people who are Entering Without Inspection (EWI); these people are subject to all of the laws of admissibility. Entering Without Inspection, or being an EWI means that you entered the United States illegally).
This area of the law can be quite complex. For example, if you left America but did not enter a new country, you are not seeking readmission (let’s say you rented a boat and left the continent but only went fishing). Another example is a person who leaves America but for some reason is not admitted to Canada, that person has not left the United States and therefore does not seek readmission, avoiding the triggers of a person seeking readmission.
There are many grounds of inadmissibility immigration lawyers deal with, and these are the ones we are called about the most.
GROUNDS OF INADMISSIBILITY: Immigration Waivers and Appeals
- Health related grounds (mental retardation was removed as a ground in 1990) and AIDS was removed in 2008, as well as grounds based on:
- Physical and mental disorders;
- Drug abusers and addicts
(note: single use of Marijuana or amphetamines does not count, you don’t have to be an addict to be disqualified here). These persons do not have waivers available if this section applies to them;
- Someone likely to become a public charge (this is why Affidavits of Support are important);
- People who have committed a crime of Moral Turpitude [again here the definition of what ‘is not’ a crime of moral turpitude is easier that ‘what is’; call us as soon as you have been charged]. (unless it is for a petty offense [maximum penalty is one year in prison AND you were not sentenced to more than 6 months]). The petty offense exception does not apply if you committed more than one offense or if it applies to a drug-related case;
- Drug-related offences. If they believe or know that you are a trafficker in any controlled substance or has reason to believe you are or were as assister, abettor, conspirator or colluder in trafficking. A conviction is only necessary if they use the “reason to believe” part of the statute. Also, if you are the spouse, son or daughter of someone inadmissible for trafficking, you too are inadmissible if in the last 5 years you had any financial or ‘other’ benefit from the trafficking and knew or reasonably should have known the benefit was due to the activity;
Immigration waivers are available under certain circumstances for 30 grams or less or marijuana. Foreign convictions require mental intent but American ones do not.
- Two or More Offenses. However convicted, if the aggregate conviction is for 5 years or more of confinement, even if suspended, brings you into this section;
- Persons ordered Removed. If you have been deported or leave while deportation is pending, you face 10 years away unless you have permission to re-enter sooner from the AG (Attorney General). The case you file is a 212 waiver (please do not simply fill out the form without a legal brief. This is the legal equivalent of open-heart surgery and should not be attempted as a do-it-yourself exercise);
- People who have overstayed by 6 months or 1 year; they are subject to 3 and 10-year bars, respectively (this law took effect April 1st of 1997). This section kicks in, by the way, once you leave the country;
- If you are granted Voluntary Departure and do not leave, you will be in a state of unlawful presence as of the date the Voluntary Departure expires and you add on any unlawful presence you had before the Voluntary Departure. However, if you are granted Voluntary Departure after proceedings began, you will not be subject to the 3-year bar, but will be subject to the 10-year bar;