TO THOSE AFFECTED BY THE 3 OR 10 YEAR TIME BAR (OR TIME PUNISHMENT)
Recently, you consulted with our Law Offices to find out about any legal immigration procedures which would allow you to become a Lawful Permanent Resident (also referred to by the synonyms Resident Alien, Immigrant, and Green Card Holder) in the United States (U.S.), as you were fearful about continuing to live in the U.S. illegally.
Our Attorneys explained to you that in 1996 U.S. Congress made a series of changes in the U.S. immigration laws making it far more difficult for persons like yourself to become Lawful Permanent Residents. Specifically, under current law, if a person has lived illegally in the U.S. for more than 180 days but fewer than 364 days after April 1, 1997, he or she would have to live outside the U.S. for 3 years before being allowed to re-enter the U.S. legally (3 Year Time Bar Punishment). If a person has lived in the U.S. illegally for one year or more after April 1, 1997, he or she would have to remain outside the U.S. for 10 years before being allowed to re-enter legally (10 Year Time Bar Punishment). If you are subject to either Bar Punishment, you will need an immigration attorney to prepare a waiver for you.
Even if you can now obtain an approved Labor Certification Application from the U.S. Department of Labor (USDOL) (Step 1), and an approved Immigrant Petition from the U.S. Immigration and Naturalization Service (INS) (Step 2), under current immigration laws, you will not be able to remain in the U.S. to obtain your Residency (Step 3) unless you filed a Petition with the INS or USDOL before January 14, 1998 (e.g. Relative Petition or Labor Certification Application).
Instead, you must return to your home country to receive your immigrant Lawful Permanent Resident green card. This is called “Consular Processing.” However, when you go to the American Embassy in your home country to attend your Immigrant Visa interview, a Consular Officer (a U.S. Department of State employee responsible for issuing Immigrant Visas at American Embassies abroad) will deny your application based on either the 3 or 10 Year Time Bar Punishment if either is applicable to you.
At the Immigrant Visa interview, the only chance you have to obtain legal residency in the U.S. is through the presentation of a “waiver” as mentioned above. A waiver asks the INS to excuse you for living illegally in the U.S. This waiver, submitted to the INS, must be signed by a U.S. Citizen or Lawful Permanent Resident spouse or parent only, and when it is filed it must include a great deal of supporting documentation proving that your U.S. Citizen or Lawful Permanent Resident spouse or parent would suffer “extreme hardship” living in the U.S. without you. This waiver may take up to 6-8 months for the INS to adjudicate, during which time you must remain in your home country. If you have a U.S. Citizen or Lawful Permanent Resident spouse or parent living in the U.S., this may be a possibility for you. Please see your immigration attorney for specific details.
If you do not have a U.S. Citizen or Lawful Permanent Resident spouse or parent now living in the U.S., but you do have a parent (or spouse) alive in your home country who is in good health and who is willing to enter the U.S. legally to come live and work here, our Law Offices could search for a U.S. employer who would be willing to sponsor your parent (or spouse) in the Labor Certification Process as a future employee. Our Law Offices find foreign national employees for the following kinds of American companies: Cleaning Companies; Gardening & Landscaping Companies; Agricultural & Poultry Farming and Processing; Construction (Building, Painting, Electrical work) and Manufacturing (Trailers) Companies; Restaurants and Bakeries; etc. If your spouse or parent in your country of origin has at least 3,500 hours of experience in any of these kinds of companies, we could process a Future Labor Certification for them so that they become future employees for these companies.
Our Law Offices would then prepare the Labor Certification Application for your parent or spouse as a future employee by mail. Your parent or spouse would remain in their home country throughout the Labor Certification process. Once your parent enters the U.S. as a Lawful Permanent Resident, you would then apply for your Residency at the American Embassy in your home country (based on the fact that you successfully completed the Labor Certification process, for example), and your parent (or spouse) would file a waiver on your behalf. Again, without this waiver (signed by a U.S. Citizen or Lawful Permanent Resident spouse or parent), you will be unable to apply for the waiver of the 3 or 10 Year Time Bar Punishment and will be denied your Residency at the American Embassy, even if your Labor Certification Application and your Immigrant Visa are approved.
Alternatively, if your parent(s) is (are) still alive in your home country, and you are fortunate to have a brother or sister who is already a U.S. Citizen living here in the U.S., then that brother or sister could file a Relative Petition for your parent abroad to be able to legally immigrate to the U.S. (in other words, to procure a green card). Or if you are lucky enough to have a brother or sister in the U.S. who has Resident Alien (Lawful Permanent Resident, Green Card Holder) status, but has not yet applied to become a U.S. Citizen, then that brother or sister (after having Green Card/Resident Alien status for 5 years) can then apply to become a Naturalized U.S. Citizen. Please note that due to the current harsh immigration laws, any person wishing to apply for Naturalization should first consult with an Immigration Attorney to avoid any potential problems which could lead to deportation.
Thus currently, it is no longer enough for you to participate in the Labor Certification process with a willing U.S. employer who wants to help you obtain your green card based on your job skills, unless you have been living in the U.S. legally (i.e., have a valid INS Employment Authorization Document, also known as a work permit). A person who is here legally with Employment Authorization may still be unable to remain in the U.S. to obtain Lawful Permanent Residency. However, when they return to their home countries to do “Consular Processing,” they will not be subject to the 3 or 10 Year Time Bar Punishment as “illegal” aliens are, and thus are not required to present a waiver because they lived in the United States with a temporary INS work permit.
Some of the other factors that could prevent you from becoming an Immigrant are convictions for drunk driving, domestic violence, or other “minor” criminal convictions. If the convictions are determined to be “aggravated felonies” (a term with its own special definition under immigration laws), the convictions could potentially prevent an illegal alien like yourself from ever becoming an Immigrant to the United States. In addition, if you have committed any “aggravated felonies,” you may end up in a Removal or Deportation trial.
Please contact our receptionist to schedule a free consultation if you are ready to open a Labor Certification case for yourself, if you have a Lawful Permanent Resident or U.S. Citizen spouse or parent here in the U.S., or for your parent or spouse living abroad. Note that while the first consultation is free, a second costs $200 prepaid (for one half hour). This $200 is credited toward your legal fees if you open a legal case with our Law Offices. To open a case, a down payment of $500 minimum is typical, with minimum monthly payments thereafter of $200, and full prepayment before the Immigrant Visa interview abroad. Payments can be made by cash, check, money order, or credit card once a month.
Although the information contained herein is believed to be true and accurate, it is intended to be general in nature and may not apply to any particular set of facts or circumstances. Further, the information is not intended and is not presented as legal advice and does not constitute an engagement of the Law Offices of Romney Wright, P.C. nor does it establish an attorney-client relationship. Please note that each week, hundreds of pages of new immigration laws, rules, and regulations are issued.
©The Law Offices of Romney Wright, PC, July 2000
