Question 1: I came to the United States on a visitor’s visa in 2007. I am applied for an extension of my visa and it was granted until 2008. I am not married but my employer now wants to petition for me so that I can have legal status and work full-time. How can I do this?
Answer: In order to change status from a visitor’s visa to a work visa you must be in current legal status. For example in order to change status your current status must still be valid. Whenever you enter the United States on a visitor’s visa Immigration usually gives you a white I-94 card. You are then authorized to remain in the United States until the date indicated on the I-94 card. If you remain in the United States beyond that date you are now in illegal status and therefore ineligible to change status while in the United States. In addition, if you remain in the United States beyond your authorized stay you will begin to accrue unlawful presence.
Question 2: What is unlawful presence?
Answer: Unlawful presence simply means that you are present in the United States without Immigration authorization. Unlawful presence can be applied to individual who initially legally entered the United States and others who entered the United States illegally. For the purpose of this article I will limit my response to individuals who initially legally entered the United States, pursuant to their visa or visa waiver program, and then overstayed their status. For individuals who entered the United States in legal status but then overstayed unlawful presence begins to accrue once they have overstayed their authorized stay as indicated by Immigration. Individuals should strive to avoid unlawful presence because it could result in a 3 or 10 year bar from returning to the United States, deportation, and/or ineligibility for a change of status and other immigration benefits.
Question 3: What is the 3 of 10 year bar?
Answer: If you have accrued unlawful presence of more than 6 months but less than 1 year and you depart the United States you will barred from returning to the United States for 3 years. Likewise if you have accrued unlawful presence of 1 year or more and you depart the United States you will be barred from returning to the United States for 10 years. This means that if you leave the United States and you apply overseas to obtain another visa or to apply for permanent resident status the U.S Consulate is authorized to deny your request simply because you are subject to the 3 or 10 year bar. Some individuals may be eligible for a waiver of the 3 or 10 year bar. However, the waiver is not automatic and it is granted solely at the discretion of Immigration.
Question 4: Can I be deported simply because I overstayed my visa?
Answer: The short answer is yes. Anyone who is the United Status in illegal status is subject to deportation at any time. Individuals who initially entered the United States in legal status but then overstayed their status is considered to be in illegal status. In 2011 the Immigration and Customs Enforcement issued its legal memorandum on prosecutorial discretion. However, prosecutorial discretion is discretionary. In addition, a number of immigration attorneys have found that despite the memorandum ICE has not changed their practice of removal. As such, I would not rely on Immigration to exercise discretion in any removal proceeding.
Disclaimer: This article is a broad overview and is provided as a public service. This article is not intended to establish an attorney-client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.
About the Writer:
Safiya Byars ([email protected]) is the senior partner and owner in the Law Office of Safiya Byars (www.byarslawgroup.com). She is an active member of the Caribbean and International communities in Georgia. She graduated Summa Cum Laude from the University of Montevallo and received her law degree from the University of Alabama in Tuscaloosa, Alabama. Her office is located at 160 Clairemont Avenue, Ste. 200, Decatur, Georgia 30030. Attorney Byars handles all immigration matters, deportation defense, family law issues, and business formation/litigation. To discuss you case, contact Attorney Byars at 404-992-6506 or 678-954-5809.
