LOS ANGELES (Feb. 27, 2017) — A number of people who have overstayed their visas and married U.S. citizens but not filed their paperwork are finally doing so. A lot of them thought that simply being married to citizens would make them legal.
That is not the case, according to Steven Riznyk, CEO of myImmigrationAttorney.com
If the case for permanent residence (=Green Card) has not been filled out and submitted to the CIS (=immigration department) then the person does not have status in the United States absent another underlying visa, he said. More importantly, those with criminal records may find that the adjudication of waivers is stricter under the current administration than would have been in the past, he said.
The biggest challenge immigration lawyers face is that a number of people have criminal records in their past, Riznyk said. As we know, according to Presidential Order 13768, visa and Green card holders with criminal records are a priority for removal from the United States.
A lot of people have made errors in judgment as youths, he said. Although they may have lived exemplary lives as adults, having learned their lessons, many of these offenses are not forgivable for immigration purposes. Regrettably, absent an allowable waiver or presidential pardon, , they are facing imminent removal from the United States.
Although there is more leeway for nonimmigrants (i.e. visa holders) [see www.waiver-strategy.com, potential immigrants face a tougher standard. The biggest, and one of the most popular problems is drugs. As youths, some people have experimented with one drug or another, and waivers (i.e. a case whereby immigration forgives your offense) are not available for persons with drug offenses that involve more than 30 grams of marijuana.
We often receive calls from persons who were removed from the United States for possession of a single dose of ecstasy or mushrooms, and they are not eligible for Permanent Residence status, Riznyk said. Even with a waiver for 30 grams or less of marijuana for personal use, the waiver still requires the person to establish to the government’s satisfaction that extreme hardship would result to the person’s U.S. citizen/Permanent Resident spouse, children, or parents. Extreme Hardship is a very high standard to meet and exceeds most monetary, separation, and other issues which in and of themselves are extremely difficult.
The only solutions for many such persons would be to either obtain a nonimmigrant visa (such as that for an investor) and an INA§ 212(d)(3) waiver, or, in the case of a felony conviction, a Governor’s Pardon. Expungements are not recognized for immigration purposes and Governor’s Pardons and their equivalents must be based from the United States, not from the foreigner’s country or another country. An INA § 212(d)(3) wavier is, on the one hand, purely discretionary, but on the other hand, does not require a showing of extreme hardship. In my opinion, it is the legal equivalent of neurosurgery, and requires a lot of artful drafting and research. After all of that, there are still risks of it not prevailing, he said.
Strategically speaking, one could hypothetically apply for the INA § 212(d)(3) waiver and a student or work visa, but realistically, a contribution to society, such as job creation with an L1 or E2 would yield a better chance in my opinion. We have been able to use the E2 visa (which is consecutively renewable longer than any other visa) to bring people into the US for many reasons where otherwise they had no alternatives.
Steven Riznyk is a business and immigration attorney who has been practicing for 29 years. He is an author and not only creates cases for immigration lawyers and the public, he has been training lawyers for decades in the complex areas of immigration law, and is an immigration author and strategist.