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Applying for a visa after being barred

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“I have a problem that I’m hoping you can assist with. I am from Ireland, and have been living in the U.S. for six years. I do not have a visa.


“Two years ago I had to travel home for a family death. When I attempted to return here I was told by U.S. immigration that I would not be able to come to the U.S. for another 10 years because I had been here illegally for so long.


“Needless to say I was devastated and desperate for a way to return. To make a long story short, I traveled to Canada and entered the U.S. by driving over the border. I did not meet a U.S. immigration officer and everything worked out according to plan.


“That was about 21 months ago. During that time I met a lovely U.S. citizen, and we would very much like to get married. But I’m petrified of going through the legalization process. What would happen if I did, given that I’m technically barred from the U.S. and shouldn’t be here in the first place?”

Your quest for legalization is going to prove very problematic, even if you marry a U.S. citizen. Becoming legal isn’t an impossibility, but you’re going to have to take a long-term view that will very likely involve significant time outside the U.S.

This column will provide brief generalities about situations such as yours, but it’s imperative that you speak to an immigration lawyer before proceeding with any course of action.

If you had met and married a U.S. citizen prior to your departure for the family matter, your case would have been straightforward enough. You’d be eligible to undergo what’s known as adjustment of status at an immigration office here, a fairly routine process that would have led to you becoming a legal permanent resident here probably within a year or so, depending on where you live.

However, you now have the twin complications of the 10-year bar and the illegal entry to deal with. As you crossed the border without encountering a U.S. officer you are considered to have entered the country without inspection, an offense that prohibits adjustment of status here with only a few exceptions.

Judging from your letter, the exceptions do not apply to you. (One of the exceptions -- persons who had visa petitions filed on their behalf on or before April 30, 2001, and were physically present in the U.S. on December 21, 2000).

What can you do? If you apply for permanent residence based on marriage to a U.S. citizen you’ll have to go through the process in Ireland, as adjustment of status is not available to you because of the entry without inspection.

Your lawyer will advise you to apply for an application for a waiver of grounds of inadmissibility, which if approved would lift the 10-year bar to re-admittance to the U.S.

These waivers are very difficult to obtain, however, and applicants must show that extreme hardship will result if a waiver is not approved – for example, a family emergency necessitating the presence of the barred applicant.

As you’re undoubtedly aware, you’ve got real difficulties to deal with, and you’ll have to hash out your case with an immigration attorney to see which way you want to proceed.

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