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Family Immigration Petitions and the "Permanent" Bar

8/27/2015

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Hypothetical: A potential immigrant to the United States, Bill, came across the border illegally in 2005 and stayed with a family member in Idaho until 2008, after which he returned to his home country. After being unable to find work in his home country, Bill decided to return to Idaho where job prospects were much better. Bill was able to return to Idaho where he met Daisy, a citizen of the United States. 

Daisy and Bill fell in love and got married. Now, Daisy wants to help Bill to become a lawful permanent resident (green card holder). Can Daisy help Bill become a lawful permanent resident?

Unfortunately, no, she cannot. One of the harshest immigration laws in the United States is the “permanent bar.” Unfortunately, it is also one that is poorly understood, even by many attorneys.

Typically, a United States citizen can petition for their alien spouse’s status as a permanent resident in the United States. If the alien spouse has been in the United States illegally, then the alien spouse has accrued “illegal presence.” If they have more than six months of illegal presence they may need a waiver in order to overcome the penalty for this illegal presence. Please see www.my601waivers.com for more information about waivers illegal presence.

The permanent bar came about as a result of the immigration reforms under the Clinton administration in 1997. It states, basically, that if any person was unlawfully present in the United States for an aggregated of more than one year beginning on April 1, 1997, then leaves the United States (for whatever reason), and then returns to the United States, or tries to, they are ineligible for the majority of visas given by the United States. This penalty lasts forever. A discretionary waiver is only available after ten years of being outside of the United States. This permanent bar also applies to anyone deported who then attempts to re-enter. Please see the Immigration and Nationality Act, section 212(a)(9)(C)(i)(I) and (II).

There are a few narrow exceptions to this rule. The most common of these are U-nonimmigrant status, cancellation of removal (in immigration court), political asylum/withholding of removal under the convention against torture (CAT), and self-petitioners under the violence against women act (VAWA). This is not, of course, an exhaustive list of potential exceptions, and the exceptions themselves can be very narrow. Therefore, if you or your loved one has a “permanent bar” because of entering illegally after either one year of illegal presence or a deportation, they should discuss their case with an immigration attorney to see if one of the exceptions applies to them.
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Welcome, and thank you

8/23/2015

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Dear friends, family, and associates:

The founding of this law firm is a token of sincere work and effort to obtain a goal that my wife and I have fostered for some time now. We feel the desire to begin this great adventure and have stepped out into the unknown, trusting fully in our Father in Heaven to support us as we work together.

We want anyone who walks through our office door to know that we intend to genuinely serve and represent them to the best of our abilities.  As a team, my wife and I are excited to shakes hands with our clients, look them in the eyes when we welcome them to our office, and listen to their stories.  Our goal is to help clients feel welcomed and understood.

We will open the doors of our new firm on September 1, 2015 at 9:00 am. While beginning this new firm has not been without its challenges, we feel that it has truly been guided by a loving God as we work to establish a secure future for our family.

We thank you with all of our hearts for the support each of you offer and hope to be able to serve and help you in return.  

One of the things we will be offering here on our website is a blog where I will, from time to time, post articles meant to explain complicated areas of the law to help anyone who wishes to gain an understanding of some of the less-understood areas in immigration, criminal, and personal injury law. If there is a topic you would like me to discuss here, please let me know and I will do my best to discuss it.

Sincerely,

Gage C. Herbst


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