Immigration Waivers, Appeals & Litigation

December 4, 2000

As a teenager, I entered the USA from Russia to be a nanny. I didn't know I needed a work permit, so I told the border control the truth. I was deported and banned. Now I am engaged to be married to a US citizen. Is there anything I, or a lawyer can do now, 7 years later?

Normally someone who is ordered deported by an immigration judge cannot return for at least 10 years, unless they obtain special permission from the Attorney General. You should file an "Application for Permission to Reapply for Admission into the United States after Deportation or Removal" on INS Form I-212.

It is very important that Form I-212 be well-documented before filing your application, and that the person preparing the Form on your behalf understand the law well.

I am worred that the INS will deny my case because they don't believe my marriage was genuine – I am 12 years older than my husband. How difficult is it to appeal, and what are the steps?

First, the INS must approve a spousal visa petition if the marriage was genuine at the time of the marriage. A 12-year age difference is only one of many things that will be considered by the INS in determining whether the marriage was genuine.

Second, it is important to show that the marriage was known about by friends and family, that you and your husband live together and that you are keeping your financial business (i.e. income tax returns, insurance policies, checking and bank accounts) together.

However, if a marriage petition is denied by the INS, the petitioner (the US citizen or permanent resident spouse) may appeal the decision to the INS administrative appeals board. If this appeal is denied, the petitioner may then go to Federal Court to try and change the decision.

My situation is that I am recently married to my illegal alien boyfriend. What do we need to do next? I am a US citizen. Will he be deported? My husband has been here illegally for almost four years.

If your husband entered the U.S. on a visa and overstayed or violated his status, he can adjust his status to permanent resident without leaving the U.S.

However, if he entered the U.S. without inspection by a border official, he is ineligible to get a green card while remaining in the U.S. After your visa petition (Form I-130) for him is approved by the INS, he will need to go abroad to apply for permanent residence. However, he will be subject to a ten-year bar of inadmissibility. Therefore, to get around this, you will need to submit a waiver of the ten-year bar on his behalf. You should complete and thoroughly document that you will suffer "extreme hardship" if your husband is forced to live outside the United States for 10 years. Submit an "Application for Waiver of Grounds of Excludability" (Form I-601) when requested by the Consulate.

Fortunately most of such waivers are approved. Unfortunately, the State Department must send the waiver application to the INS, where backlogs of 9-12 months are common. During this time, your husband must remain abroad.

FOR MORE INFORMATION:

Contact John Byrley at tel: 410-719-1501.