By Michael J. Gurfinkel, Esq.
Recently, there was a story making national news, about a high school student who got stuck in Mexico while applying for her immigrant visa. She would not only miss her high school graduation, but she would also be banned from returning to the U.S. for three years.
According to news reports, this student was brought to the U.S. from Mexico when she was only four years old. It is likely that she crossed the border without any visa (snuck across the border, entered without inspection, or EWI). During the next fourteen years, she grew up pursuing the American dream. Her father was somehow able to become a U.S. citizen and ultimately petitioned her. However, if she entered the U.S. without inspection (snuck across the border), and did not have the benefit of Section 245(i) (i.e. petitioned before April 30, 2001), then she could not adjust status (or be interviewed for a green card) in the U.S. Instead, she would be required to depart the U.S. and be processed for her immigrant visa in Mexico.
By law, a person who has been out of status in the U.S. for more than 180 days, and then departs, could be banned from returning to the U.S. for three years. However, a person’s presence in the U.S. before his or her 18th birthday does not count towards those 180 days. The 180 days of “accruing unlawful presence” only begins upon the child’s 18th birthday. So, when this child turned 18,her attorney calculated the 180 days, and the child left the U.S. for Mexico exactly on the 180th day, in order to be processed for her immigrant visa. Unfortunately, the attorney miscalculated the computations, and failed to take into account that there was a leap-year (i.e. February 29). With the addition of that extra day, the child effectively left the U.S. one day late, or 181 days after her 18th birthday.
When she was being processed for her immigrant visa in Mexico, the US Consul caught the issue, and told her that she was ineligible for her visa for three years. Her attorney tried seeking humanitarian parole, appealed to the State Department (advisory opinion), and went on several national news channels, etc., pointing out that she was a top student and was all set to graduate. Ultimately, a “hardship waiver” was submitted and was granted, enabling the child to return to the U.S. in time for her graduation. So, a near disaster was averted.
However, I think that there are a couple of valuable lessons to be learned from this situation:
1. Don’t leave things to the last minute. In this case, the child had 180 days to depart the U.S. from her 18th birthday. Yet she waited until the very last day. Many other people also wait until the last minute to handle their immigration issues, file petitions, etc. You don’t know what will happen. Why wait until the last minute for such things? If you are working for an employer, have the employer petition for you now (if you are eligible). If you wait until the last minute, the employer may go out of business, sell the business, you may quit, etc. Or if you are married, have your spouse petition you right away. What if you wait and the marriage deteriorates, etc.?
2. More importantly, why did her parents wait so many years to do something about her situation? Remember, this student was brought to the U.S.at age of four. The parents had fourteen years do something, and waited literally until the “last day” to do something about their daughter’s situation. Similarly, I know of many Filipino families who have had years to do something about their children’s immigration situation, but also wait and do nothing. The child then ages out, etc. In this story, the father became a U.S. citizen. That means that he had first obtained a green card. Unless he was petitioned by a U.S. citizen child, most other types of family and employment based petitions would include the derivative children. Why was the daughter not included at the time her father obtained his green card? Did the father have Section 245(i) eligibility by having been petitioned before April 2001? If so, his daughter also could have benefited from that 245(i). Again, I know many situations where Filipinos are petitioned by a family member or employer, and their petition also included their children, but somehow the children were left out or left behind.
While the child in this particular news story was eventually able to obtain her green card, if you have children, don’t leave their future in the air or to the last minute. You should definitely seek the advice of a reputable attorney, who can analyze their situation, and determine if there is something that could be done now, vs. at the last minute!
Michael J. Gurfinkel is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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