The Minefield of Immigration Law: Let Us Help You to Navigate Through it

Christina, age 26, born in Mexico, calls the office. "I just married Peter, a U.S. Citizen. Everything will be fine now, right?"

Usually, marriage of a foreign-born national to a United States Citizen would be a basis for sponsorship to get lawful permanent residence, commonly known as a "greencard."

"How did you enter the United States?" I ask.

"I came at nightfall along the border near San Ysidro," she says. "We waited on a hill until dark. The night air was sticky and warm and there was no moon. We inched down slowly in the dark, feeling our way to a hole in the fence and got to the river. I could smell the foul smell of river before I reached it. I waded waist deep to the other side of the river to the United States. The current almost pulled me under. I was lucky I didn't get caught by the border patrol."

Normally a person enters the United States through getting a visa. Typically it is a tourist visa. When the person enters the United States they are given an I-94 Arrival-Departure Document which is a white piece of paper stapled into the passport. Upon entry, this paper is stamped with the date the person arrived and the date the person must depart by.

A person, who enters lawfully with a valid I-94 and visa, may then adjust their status to permanent resident if married to a United States Citizen. The person must not have any intention to marry the United States Citizen prior to entry.

A person who enters without inspection is called EWI (entered without inspection). These persons cannot adjust their status to permanent resident in the United States. They can have the U.S. Citizen spouse petition for them but would have to process their immigrant visa abroad in their home country.

Immigration and Nationality Act Section 245 (i) allowed persons to remain in the United States to process their greencard by paying a $1,000.00 penalty fee.

However, this provision ended and has not been renewed. There are certain persons who may still qualify under this provision if a labor certification, visa petition or other petition was filed on their behalf under certain circumstances.

If you feel this applies to you, we can help you. Please come and see one of our immigration attorneys to figure this out for you. Persons who qualify because of the provisions of 245 (i) are called "grandfathered," because they are eligible because of something that was filed in the past. This refers to the Immigration and Nationality Act Section 245 (i)

When a person departs the United States after being in the United States without permission or has overstayed their visa, the minute they depart-- a bar to re-entry kicks in and the person may not be allowed back into the United States. This is why it is so important to have an attorney to help you navigate through this minefield.

If a person has been here unlawfully for over 180 consecutive days but less than one year, would be barred for three years from readmission to the United States.

8 U.S.C. Section 1182 (a)(9)(B)(i)(I)

If the person has been unlawfully present for one year or more consecutively and again seeks admission is barred for ten years from the date of such person's

departure from the U.S. 8 U.S.C. Section 1182 (a)(9)(B)(i)(II). ten years from coming back in. The person must stay outside the United States for the full time barred. The person must show proof that they have remained outside the United States for the full time period.

There are certain waivers available for these bars and it is important to consult an attorney to see if they pertain to you. Also, it is valuable to have an attorney prepare any waiver applications for you and guide you through the process.

Find out who your United States Congressional Representative is. If you are someone who entered EWI, contact your representative and urge them to help sponsor some legislation to allow those who entered without inspection to come out of the shadows and become legal. We are hoping that another 245(i) provision will be enacted under Obama's administration.

Please come and see us. We offer an initial free consultation.

Article written by Linda M. Nakamura, Esq., Associate with the Law Offices of Vincent W. Davis & Associates, 150 N. Santa Anita Avenue #200, Arcadia, CA. 91006 phone: 626-446-6442 e-mail: lindanakamura@gmail.com

Linda M. Nakamura is a certified specialist in Immigration and Nationality Law with the State Bar of California, Board of Legal Specialization.