SHOULD I STAY OR SHOULD I GO
Many Immigrants (“aliens”) enter the United States through temporary visas which allow the individual a limited period of time to be legally present in the United States for work, education, health needs, or other permissible reason. In the majority of cases, the individual departs the United States within the required time period, and should the occasion arise, obtains another visa in order to revisit the United States in the future. There are however, examples in which, the individual remains in the United Statespast the time period provided in the visa “overstays”, and now faces potentially serious repercussion which could include incarceration and deportation. I was recently asked by a prospective client, “what happens if my sister came into the U.S. on a student visa and forgot to leave before her visa expired?”
Under Federal Immigration and Naturalization laws, an individual (“alien”) who has overstayed in the U.S. for over 180 days but less than one year, and subsequently departs the U.S. voluntarily prior to commencement of removal proceedings, may not re-enter the U.S. for a period of three years. Individuals (“aliens”) who have overstayed in the U.S. for one year or more, and who subsequently depart the U.S. may not re-enter for ten years. A strict reading of the law suggest that one day or more of overstay would bar your re-entry for up to three years. One year and one day more of overstay, could bar your re-entry for up to ten years. As a result, many Immigrants (aliens) who realize that they have overstayed and could be faced with up to a ten (10) year bar on re-entry to the U.S. are asking, Should I stay or Should I Go?
In all cases, I advise that you must adhere to the time guidelines stated in your visa and avoid the potentially unfortunate consequences of overstaying your visa. However, and in certain instances, overstaying one’s visa, while not advisable or recommendable, may not result in the imposition of either a three year (3) or ten year (10) year bar on re-entry to the United States. Waivers to the bars on re-entry have been granted in documented cases of extreme hardship to a family. In other instances applications to change or extend the status of a visa may be used to avoid the repercussions of an “overstay”. Nonetheless, where circumstances occur and you have “overstayed”, the best course of action is to address the issue head on by consulting with an Immigration Attorney. To do nothing, and run the risk that you may subsequently be placed in removal proceedings or deportation and barred from re-entry for up to 10 years is not advisable.
Patrick G. Lyle, Attorney At Law
American Immigration Lawyers Association Member
WHAT IS DEFERRED IMMIGRATION ACTION
You are a seventeen year old high school student. One morning while on the way to school, youand a friend stop into a local neighborhood store. While in the store and unbeknownst to you, your friend attempts to shop lift some items and place them into your book-bag. You both leavethe store and are promptly arrested by the police. At some point while you are located at the police station you learn that you came to the country illegally and are now being placed in deportation proceedings. What do you do?
Many immigrants who came to the United States as children with their adult parent, and were not inspected upon arrival in the United States, are currently potentially subject to enforcementaction by the Department of Homeland Security, and the INS. On June 15, 2012, President Obama announced that his administration would temporarily eliminate the possibility of deportation for many young immigrants by implementing the “Deferred Action for Childhood Arrivals” (DACA) initiative. Under DACA an immigrant who is at least 15 years of age, or if they are in removal proceedings, under 15 years of age may apply to the INS using Form 1-821D for Deferred Action. The conditions which an applicant must meet in order to be consider for relief under DACA are:
1) Came to the U.S. before their 16th birthday;
2) Are less than 31 years of age and are not in any valid immigration status on June 15, 2012;
3) Have resided continuously in the United States between June 15, 2007 and the date of the application;
4) Are currently enrolled in school, graduated from high school, obtained a GED, or were honorably discharged from the Armed Forces;
5) Have no felony or aggravated misdemeanor convictions, three or more misdemeanor convictions or plea, and do not otherwise pose a threat to national security or public safety.
An individual who applies for deferred action may be granted temporary relief from enforcement or deportation for a period of two years, after which the recipient may request a renewal. While DACA does not currently provide a path to either Citizenship or Naturalization for an applicant, there are many benefits.
First, the individual may continue gainful employment and continue his or her education while under DACA. In addition DACA immigrants may travel outside the United States and depending on the law of the State in which the DACA immigrant lives, he or she may be able to obtain a driver’s license, and other state benefits.
So if you have recently learned or discovered that your parents brought you to the United Stateswithout inspection prior to your 16th birthday, or have been arrested and discovered that your immigration status is in question and you could be placed in deportation, you may be eligible forrelief under DACA. If you believe that you may be eligible for relief under DACA, consult with an Immigration Attorney.
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Notice: Attorney Patrick G. Lyle is admitted to Practice Law in the Commonwealth of Massachusetts and the State of Connecticut and is responsible for the contents of this website. This website is designed for general information purposes only. The information presented at this site should not be construed to be either formal legal advice or the formation of a lawyer/client relationship.