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Law lacks pathway for undocumented immigrants to stay

On Behalf of | Jun 2, 2021 | Immigration

A 1996 law bars reentry of anyone who was in this country without legal immigration for over six months from three to 10 years. This immigration law, however, is particularly severe because it applies to undocumented immigrants who must leave this country and apply for an immigration visa at a consulate overseas. Reinstating the Legal Immigration Family Equity Act could help correct this injustice.

Bars to legal reentry

Section 245(a) of the Immigration and Nationality Act contains the requirements for adjusting immigration status. Applicants must meet many requirements such as being inspected by an immigration officer at a port of entry and admitted into the U.S., have a visa available to them and hold lawful status with exceptions for immediate family members and visa overstayers who entered with inspection and had no legal status at the time of their application.

A temporary provision, section 245(i) of the LIFE Act, was added to the INA to help reduce the burdens on overseas consular offices. This allowed eligible individuals to obtain permanent resident status without having to leave this country and satisfying the requirements for inspection and admission in 245(a). This temporary provision became more important in 1996 after Congress enacted three- and 10-year bars to admissions. However, section 245(i) expired in 2001 after being extended at least three times.

Three and 10-year bars

These bars prevent undocumented immigrants who leave this country from returning for specified periods. If a person accrues between 180 days and one year of unlawful presence, they are prohibited from reentering the U.S. for three years. A person may be barred for 10 years if they accrued at least one year of unlawful presence in this country.

A person who can demonstrate extreme hardship among other requirements may apply for a provisional waiver that is precleared in the U.S. This permits them to depart the country to obtain their visa without the risk of the reentry bars. New policy guidance was issued in 2016 expanding this process to more people.

Stateside waivers

Even though the temporary 245(i) provision was not reinstated after it expired in 2001, the federal government issued a provisional stateside waiver that reduced the risk of the three and 10-year bans. This rule allowed eligible undocumented family members to travel overseas for their green card without facing this bar. Since 2016, this applied to applicants from all immigrant classifications.

Reducing a problem

Reenacting 245(i) of the LIFE Act and ending the three and 10-year bans could help many undocumented immigrant family members of U.S. citizens, legal permanent residents, and immigrant workers. According to one analysis, there are 2.3 million undocumented immigrants in this country who have a U.S. citizen or legal permanent resident spouse or an employer who could sponsor them for a green card.

There are 1.4 million people who have a U.S. citizen or permanent resident spouse, and 1.1 million individuals may have a U.S. employer. This does not include eligible undocumented parents of U.S. unmarried U.S. children who are at least 21 who can file a petition for them.

Gaining access and staying in this country can be complicated. Attorneys can help assure that your rights under the country’s immigration laws are protected.


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