WHAT HAPPENS IF I DEPART THE US?
By Alexander H. Lubarsky, LL.M, Esq.
If you are not a US citizen, your departure from the US may bring certain consequences. The following is a chart which will assist you with making your decision as to whether or not you should travel outside of the US and, if you decide to do so, under what circumstances you should travel. I have broken down the chart below based on ones current immigration or non-immigration status.
A. I HAVE BEEN IN THE US ILLEGALLY FOR UNDER SIX MONTHS
Those unlawfully present in the US (i.e., you entered without inspection "snuck in" or for UNDER SIX MONTHS your departure will not help your unlawful status. In other words, in order to come back legally you will have to apply for permission to enter the US from abroad in a US consulate. You will have to ask for a tourist visa, a student visa or possibly by way of family or work if you have sponsors and qualify to enter as a family immigrant or temporary or permanent worker. The fact that you had previously remained illegally in the US for a short time will hinder your applications a bit, but this is not necessarily fatal.
B. I HAVE BEEN IN THE US ILLEGALLY FOR OVER SIX MONTHS BUT UNDER ONE YEAR
Those who have been illegally present in the US for over SIX MONTHS BUT UNDER ONE YEAR face more substantial risks. They too must have a valid visa or other permission from the Immigration & Naturalization Service or US State Department to return to the US after departing. However, there is a "catch" here: this class of people CANNOT APPLY FOR ANY RE-ENTRY DOCUMENT/VISA FOR THREE YEARS ! This requirement is the result of harsh new law known as INA Section 212(a)(9)(B) - informally known as the three year bar to readmission. It serves to punish people who had after 1997 been illegally in the US for over six months but under one year and then left the US and later want to reenter. It is important to note that those who applied for asylum, TPS or other special programs on or before April 1, 1997 and in no case later than September of 1997 and WHOSE CASES ARE STILL PENDING are arguably NOT deemed to be "illegal" in the United States and this bar may not apply to them.
The one small piece of positive news is that there does exist an exception to this bar. If one can prove that the three year wait required by the bar would result in EXTREME hardship to a US Citizen or Lawful Permanent Resident parent or spouse, an attorney may be able to convince the people at the foreign consulate that the bar should not apply and that the consulate should continue to process the application for an entry visa. The document used to request this permission is known as a waiver application and it should be prepared by an experienced attorney as it is a very involved and complicated application. Lastly, it may take many months before the waiver application can be created, delivered and evaluated.
Therefore, if you have remained in the US without any valid permission or status for over six months since April of 1997 it is advisable that you DO NOT leave the United States.
C. I HAVE BEEN IN THE US ILLEGALLY FOR OVER ONE YEAR
Those who have been illegally present in the US For over ONE YEAR face more substantial risks. They too must have a valid visa or other permission from the Immigration & Naturalization Service or US State Department to return to the US after departing. However, there is a "catch" here: this class of people CANNOT APPLY FOR ANY RE-ENTRY DOCUMENT/VISA FOR TEN YEARS ! This requirement is the result of harsh new law known as INA Section 212(a)(9)(B) - informally known as the three year bar to readmission. It serves to punish people who had after 1997 been illegally in the US for over six months but under one year and then left the US and later want to re-enter. It is important to note that those who applied for asylum, TPS or other special programs on or before April 1, 1997 and in no case later than September of 1997 and WHOSE CASES ARE STILL PENDING are arguably NOT deemed to be "illegal" in the United States and this bar may not apply to them. The one small piece of positive news is that there does exist an exception to this bar. If one can prove that the three year wait required by the bar would result in EXTREME hardship to a US Citizen or Lawful Permanent Resident parent or spouse, an attorney may be able to convince the people at the foreign consulate that the bar should not apply and that the consulate should continue to process the application for an entry visa. The document used to request this permission is known as a waiver application and it should be prepared by an experienced attorney as it is a very involved and complicated application. Lastly, it may take many months before the waiver application can be created, delivered and evaluated. Therefore, if you have remained in the US without any valid permission or status for over one year since April of 1997 it is advisable that you DO NOT leave the United States.
D. I NOW AM IN THE PROCESS OF BEING IMMIGRATED BY WORK OR BY A FAMILY MEMBER.
If you are now in the process of attaining legal status, but you do not have such status yet. You must file a special request with the Immigration & Naturalization Service before you can leave the United States. If successful, the Immigration & Naturalization Service will give you a special document that will allow you to return after a short visit. You must be prepared to describe the purpose and itinerary surrounding your trip to the Immigration & Naturalization Service.
E. I HAVE A GREEN CARD
If you have a green card, you are expected to be PERMANENTLY residing in the US. This is why the green card (or Mica) is known also as the Permanent Resident card. Of course, those with green cards are not expected to remain imprisoned within the borders of the US short and casual trips abroad to see family or vacation are acceptable provided these trips do not exceed 90 days together or six months in total throughout the year. If you plan to travel outside of the US for a long period of over three months or if you plan several trips to and from the US and you have a green card, consult with your immigration attorney to discuss the dangers that such absences may cause.
F. I AM IN DEPORTATION PROCEEDINGS
If this is your situation YOU CANNOT TRAVEL OUTSIDE OF THE US if you do, you will be automatically self-deported. If there is an emergency and you must travel, visit your deportation attorney to see if you case can be advanced or if other arrangements can be made on your behalf.
G. I HAVE WON ASYLUM OR I HAVE AN ASYLUM CLAIM PENDING.
If you fall into this category, you may be able to travel depending on how far along you are in the process of applying for or winning your asylum. However, in no case can you travel back to the country from which you won asylum! Obviously, if the US has agreed to protect you from country X, it would not make sense for you to return to that country voluntarily.
H. I AM HERE WITH A VISA
Check and see if your visa is a single entry or multiple entry visa. If it is a single entry visa, if you leave you will have to apply from abroad to re-enter the US .
As I conclude this column every month, remember that knowledge is power and you owe it to yourself to remain well versed in the law. Ignorance of the law never has been and never will be a defense to those who are charged with breaking it. Stay on top of the developments, consult with your immigration attorney frequently and, above all, dont do anything stupid!
The information contained on this site is intended to educate members of the public generally and is not intended to provide solutions to individual problems. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek competent legal counsel before relying on information contained learned on this site. Copyright © 2001 Community Legal Centers of California. All rights reserved.