Can He Return?

Posted by Debbie McGoldrick at 4/15/2009 12:30 PM EDT

QUESTION:


Can He Return?


“My brother lived and worked in Boston/New York for nearly five years. He has recently had to return to Ireland due to family circumstances. His passport expired while he was in America so he came back to Ireland on a temporary passport issued by the embassy. Needless to say, he wants to go back to America as he loves it and sees it as his home now. My question is this, is there any way he could go back in light of the fact he overstayed his 90 day entry, or is it a lost cause? Any advice would be beneficial.”



ANSWER:


Should he attempt to return, your brother would be subject to a 10-year bar from the country, according to U.S. immigration law, due to the fact that he spent more than one year here as an undocumented resident.

The bar is pretty much impossible to get around in a situation such as your brother’s. He could try, of course, but he should definitely not expect to be successful in his quest to return. He would be subject to a line of questioning in which the burden of proof would rest squarely on his shoulders – for instance, he could be asked to prove that he departed the U.S., as required, after his initial period of authorized entry five years ago.

He could also be asked to provide proof of what he’s been doing in Ireland for the past five years, including employer letters, bank statements, etc. As he’s been a U.S. resident for that period of time, this line of questioning would also prove extremely difficult to satisfy.

Your brother undoubtedly left the U.S. for the best of reasons, but unfortunately, resuming U.S. residence after departure isn’t on the cards. That’s the reason why so many undocumented stick it out here, missing all kinds of important events at home as a consequence.

Your brother should keep abreast of happenings on the immigration front here, as the reform battle will resume at the behest of President Barack Obama, who last week vowed to tackle the thorny issue of immigration reform once and for all.



QUESTION:


Am I Eligible?

“MY fiancé obtained U.S. citizenship and returned to Ireland to live. When we marry, will I be eligible for U.S. citizenship? If so, how would I go about securing this for myself (and any possible future children)?

“I won a green card in the Morrison visa lottery, worked in America a few years, and then returned home. My green card expired a few years ago. Would this adversely affect matters?”



ANSWER:


After you marry, you will not be immediately eligible for U.S. citizenship. First your husband would have to apply for permanent resident status (a green card) on your behalf. Three years after the status is granted, you would eligible to apply for U.S. citizenship.

The above is contingent on you and your husband maintaining a primary residence in the U.S., and adhering to the rules about keeping green cards valid – i.e., filing U.S. tax returns. If your post-marriage plans do not include residing in the U.S., then there’s no point in filing for a green card.

Your past Morrison visa won’t affect any future green card application. Many people obtain green cards, live in the U.S. for a few years and return to their home countries. This in and of itself is not a bar to future admissibility to the U.S.

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