''Exceptional Hardship" and the 10 year bar

Wow--We received good news today. After talking with an attorney, we are confident that my husband has not been unlawfully present for more than 180 days, so his advance paroles will not trigger the 3/10 year bar. Now, the attorney has to write a letter explaining why this is so. If anyone thinks they have to file an I-601 waiver due to leaving with an advance parole, I would recommend reading the November 26, 1997 memo on advance parole for alients unlawfully present in the U.S. for more than 180 days. I have a copy if someone is interested--please post your e-mail address. I will keep everyone posted and hope this works out.
Jill

Could you please cut and paste that copy here? Thanks.

Sure, here it is. I searched for it on the web, but could not find a copy. This is the full text as I received it.


INS Advises on Advance Parole for People Unlawfully Present in the U.S.

Memorandum date:
November 26, 1997
In the following November 26, 1997 memorandum, the Immigration and Naturalization Service (INS) instructs that individuals with pending adjustment applications who depart the U.S. on advance parole may trigger the three and ten year bars under Immigration and Nationality Act (INA) section 212(a)(9)(B). Such individuals would be permitted to re-enter the U.S. with advance parole, but could be deemed inadmissible when their adjustment applications are adjudicated. Text follows:


Subject: Advance Parole for Aliens Unlawfully Present in the United States for More than 180 days

Date: November 26, 1997

To: All Regional Directors
All District Directors (including Foreign)
All Officers in Charge (Including Foreign)
All Port Directors
All Service Center Directors
All Training Academies (Glynco and Artesia)
All Regional Counsels
All District Counsels
All Asylum Directors

From: Office of Programs

Generally, any alien who departs the United States after accruing certain periods of unlawful presence and who subsequently applies for a visa, adjustment of status, or admission is subject to the new 3-year bar under section 212(a)(9)(B)(i)(1) of the Act, if unlawfully present for more than 180 days but less than 1 year, or subject to the new 10-year bar under section 212(a)(9)(B)(i)(11) of the Act, if unlawfully present for 1 year or more. This includes applicants for adjustment of status whose departure is pursuant to advance parole. This memorandum seeks to answer the following questions with respect to requests for advance parole by aliens who accrued more than 180 days of unlawful presence before applying for adjustment of status under section 245(a) or 245(i) of the Immigration and Nationality Act (Act).

Question #1: Can an alien who accrued more than 180 days of unlawful presence before filing an adjustment of status application under section 245(a) or 245(i) of the Act be granted advance parole to depart the United States and return to resume processing of the application?

The answer to this question is yes; however, because a departure triggers the 3-year or 10-year bar under section 212(a)(9)(B)(i) of the Act, the alien's departure from, and subsequent return to, the United States, will pose serious adverse consequences under section 212(a)(9)(B)(i) of the Act. As explained in the answer to question #4, advance parole generally should not be granted, unless it appears that the alien would, in the exercise of discretion, be likely to receive a waiver of inadmissibility.

Section 212(a)(9)(B)(i) of the Act renders inadmissible those aliens who have been unlawfully present in the United States for certain periods of time. Section 212(a)(9)(B)(i) of the Act generally subjects aliens to either a 3-year or 10-year bar to admission, depending on the period of unlawful presence in the United States, and other factors.

According to the plain language of the statute, three specific elements must be present for the alien to be found inadmissible under section 212(a)(9)(B)(i)(l) and (ll) of the Act. First, the alien must have been unlawfully present in the United States for the specified period of time. Second, with respect to inadmissibility under section 212(a)(9)(B)(i)(l) of the Act, the alien must have departed voluntarily before proceedings are initiated under section 235(b)(1) of the Act (expedited removal of aliens at the Port-of-Entry who are in possession of false documents or who are not in possession of any documents), or section 240 of the Act (removal proceedings initiated either upon the alien's arrival in the United States or following the alien's admission to the United States.)

With respect to inadmissibility under section 212(a)(9)(B)(i)(ll) of the Act, the alien must have been removed, or have departed voluntarily. In either case, it is not necessary for the alien to have departed under a formal order of voluntary departure.

Third, the alien must be seeking admission into the United States within 3 years of the date of departure or removal to be inadmissible under section 212(a)(9)(B)(i)(l) of the Act, or within 10 years of the date of departure or removal to be inadmissible under section 212(a)(9)(B)(i)(ll) of the Act.

Because a departure triggers the 3- or 10-year bar under section 212(a)(9)(B)(i) of the Act, an alien who accrues more than 180 days of unlawful presence prior to filing an adjustment of status application under section 245(a) or section 245(i) of the Act, who departs while that application is pending, and who returns to the United States with advance parole to resume processing of the adjustment application, will be inadmissible under section 212(a)(9)(B)(i) of the Act.

Question #2: Can an alien who accrued more than 180 days of unlawful presence before filing the adjustment of status application be allowed to return to the United States on an unexpired advance parole authorization?

The answer to this question is yes. Service officers may permit such an alien to return to the United States to resume processing of the adjustment of status application. When seeking to be paroled at the Port-of-Entry, the alien is not required to establish admissibility under section 212 of the Act. Moreover, the fact that the alien was permitted to return to the United States on advance parole does not in any way confer any waiver of inadmissibility. When the adjustment of status application is adjudicated, however, the alien must establish admissibility and eligibility for an immigrant visa, pursuant to section 245(a)(2) of the Act.

Parole allows an otherwise inadmissible alien to physically proceed into the United States under certain safeguards and controls. An alien who accrued more than 180 days of unlawful presence prior to filing an adjustment of status application under section 245(a) or 245(i) of the Act who left the United States on a grant of advance parole may therefore be permitted to reenter the United States to resume the processing of the adjustment of status application. However, because a departure triggers the 3- or 10-year bar, such an alien will be found inadmissible under section 212(a)(9)(B)(i)(l) or (II) or the Act, as applicable, when the adjustment of status application is adjudicated.

Question: #3: Can the alien be granted a waiver of inadmissibility?

The answer is yes. Aliens who are found inadmissible by the Service, if applying for adjustment of status, or by the consular officer if applying for a visa, may seek a waiver under section 212(a)(9)(B)(v) of the Act. To be eligible for the waiver, the alien must establish, to the satisfaction of the Attorney General, that refusal of the application for a visa, admission, or adjustment of status would result in extreme hardship to his or her U.S. citizen or lawful permanent resident spouse or parent. Extreme hardship must be established in accordance with the standards in applicable case law. To apply for a waiver of inadmissibility under section 212(a)(9)(B)(v) of the Act, the alien must file Form I-601, Application for Waiver of Grounds of Excludability.

Service officers should also note that an alien who remained in the United States beyond the period of authorized stay, but who never departed the United States, is not inadmissible under section 212(a)(9)(B)(i)(I) or (II) of the Act, because the statutory bar to admission commences from the date of departure or removal. With this in mind, Service officers should first look at whether the alien departed the United States after accruing more than 180 days of unlawful presence. (Because the effective date of section 212(a)(9)(B)(i)(I) and (II) was April 1, 1997, no one will have accrued 180 days of unlawful presence before September 27, 1997, and no one will accrue 1 year of unlawful presence until April 1, 1998). Once the alien departs or has been removed and seeks readmission, the grounds of inadmissibility under sections 212(a)(9)(B)(i)(I) or (II) will apply.

Service officers should not consider any waiver application under section 212(a)(9)(B)(v) of the Act filed by any alien who has accrued more than 180 days of unlawful presence but who has not yet triggered the 3- or 10-year bar by departing the United States. If the alien has not made a departure, the waiver application should be rejected as improperly filed. Once such an alien departs the United States and applies for a visa at a U.S. consular post abroad, the alien may file a waiver application, if eligible, after the consular officer has determined the applicable ground(s) or inadmissibility.
In addition to waivers under section 212(a)(9)(B)(v) of the Act, certain aliens may be eligible for a broader exercise of discretion. For example, sections 209(c) and 245A(d)(2)(B)(i) of the Act relating to asylee adjustments and second-stage legalization adjustments, authorize the Attorney General to waive most grounds of inadmissibility "for humanitarian reasons, to assure family unity, or when it is otherwise in the public interest."

Question #4: Given the adverse consequences of section 212(a)(9)(B)(i) of the Act, should the Service grant advance parole to an alien who accrued more than 180 days of unlawful presence prior to applying for adjustment of status?

The answer is no. In light of the adverse consequences of section 212(a)(9)(B)(i) of the Act, Service officers generally should not grant advance parole to any alien who is known to have accrued more than 180 days of unlawful presence prior to filing the adjustment of status application under section 245(a) or 245(i) of the Act, unless it appears likely that the alien would, in the exercise of discretion, be likely to receive a waiver of inadmissibility when the adjustment of status application is adjudicated.

Question: #5: Should the I-512 Advance Parole Authorization be modified to advise aliens about the new unlawful presence grounds?

The answer is yes. Effective immediately, the following text should appear on all I-512 advance parole notices issued Service-wide and should replace the text currently in use:

"AUTHORIZATION: The holder of this authorization is an applicant for adjustment of status under the Immigration and Nationality Act. The holder departed the United States temporarily and intends to return to the United States to resume processing of the adjustment of status application. Contingent upon his or her prima facie eligibility, the holder of this document shall be paroled into the United States pursuant to the authority of [add authorizing official and authorizing office]. VALID FOR MULTIPLE APPLICATIONS FOR PAROLE INTO THE UNITED STATES.

"NOTICE TO APPLICANT: Presentation of this authorization will permit you to resume your application for adjustment of status upon your return to the United States. If your adjustment application is denied, you will be subject to removal proceedings under section 235(b)(1) or 240 of the Act. If, after April 1, 1997, you were unlawfully present in the United States for more than 180 days before applying for adjustment of status, you may be found inadmissible under section 212(a)(9)(B)(i) of the Act when you return to the United States to resume the processing of your application. If you are found inadmissible, you will need to qualify for a waiver of inadmissibility in order for your adjustment of status application to be approved."

Paul W. Virtue, Acting Executive Associate Commissioner

CONGRATULATIONS JMG!!!! That really is good news for you! Thanks for letting us know!

Congradulations :-) I'm happy for you. :-)

May I ask...Did you get advice from any legal people that it was ok to fill out the I130 and send it in? I am in the same situation as you, and last year was told that it wasnt advisable to even send this application in. Please respond, thanks...husband is "desperate" to get this thing going!

Hi Bonnie,
I don't necessarily have any advice, just that I am dealing with a similar situation, only I am in Mexico with my husband, waiting for him to get a K3 or his permanent residency. I have been here for almost a year and a half, and we are still waiting to hear if he needs to file a waiver or not, and they are investigating his record because he had been undocumented in the US before. I, too, am considering having a child, not to improve our chances, but rather because I am tired of BCIS/INS dictating how my life goes. If we were in the US, I probably would have had one already, and I had been putting it off because of our current situation. I personally think that this situation is unfair for a USC spouse, but unfortunately, BCIS doesn't seem to care. I just wanted to reply, because your situation seems similar, and believe me you're not alone.
Hang in there.

Jnaed
Nobody told me to fill out the I-130. My husband and I went to a lawyer who said he was going to do it for us for 2000.00. We didn't like him and my husband refused to pay 2000.00 for something that seemed so easy. The lawyer was going to put a fake address on the I-130 "just to be safe" even though he assured us that the INS is understaffed and far too busy to come to our small town looking for one otherwise law abiding man.
I was just fed up and I really want my husband to have his papers so that we can do everyday things, like open a joint bank account, etc. I just filled the thing out and put the whole truth on it. I even gave them my husband's place of work, which he is doing illegaly with a fake SS#. I got a paper saying they received it in March. So far, nothing has happened. I've read a lot and gotten a lot of advice from different people on different boards, and everybody says something different. I'm just trying to be optimistic. Let us know a little more about your situation and the others and myself will tell you what we know and have heard that might be able to help. :-)

Bonnie...thanks for your reply, It sounds like we are in the same situation as you are. My husband is also working with fake papers, I was wondering about putting the SS# he uses on these papers. I didnt know if I should or not, but I guess since it is better to be truthful it should be done. I just discovered this web site and these boards, so am learning things from it. We consulted an attorney last year and she said whe would get back to us and would never return my calls, I'm glad no money exchanged hands. We also went to an immigration counseling office and were told it wasnt even advisable to fill the application out, that it wouldnt be accepted. This was last fall. I assumed it was because of 9/11 and all that business. I dont know. I think I will fill out the I130 and send it in. By the way I'm in Oregon, I see you are in California? Are they checking illegals there at the DMV when they renew licenses? We heard that rumor. Oh, did you also send a biographical form in with the I130? It is hard to know what forms need to be sent. Thanks!

hey guys,

working illegally is one thing but using a fake SS# is another thing...you should be careful, this might put you in trouble...there was that story on this board of a person who filed for cancellation of removal but was then denied because of that.

good luck

I did not put my husband's fake SS on the application. We also did not use it to get our marriage license. The only think he uses it for is his job. He also used it to open a bank account, because they will NOT let you open an account without one. My husband has a Nevada driver license. He tried to get one for California, but they asked for a green card.
When you fill out the 1-130, you need to submit the biographical info for your husband and for you. You also need a passport photo of each of you. I do not know how "safe" it is to fill it out. Before getting married, I went to get info at one of those public help forum places and they told me flat out not to get married at all, because applying for a wedding license would cause him to get deported. The women basically told me there wasn't anything I could do and that I might as well leave him etc.
If the extension for 485 i is going to come back, then you could wait until then and file everthing at one time, that way you wouldn't have to worry. I probably should have done that myself, but I was just at my witts end and wanted to get something going. My husband doesn't really care whether he gets a greencard or not, he just wants to be able to go back to Mexico and visit his family and friends and introduce them to me (we've been married over a year and I haven't even gotten to meet my mother-in-law yet!) I'm the one who does all the worrying. I'm sick of not being able to do normal things for the stupid reason that my husband is "illegal."

TO:BONNIE

Pl do not get disappointed and do not think all the time about yr husband's situation. I have read all the reply posts over here and believe me most of them did not provide a right answer.

Marriage licence offices are not required to ask anyone's legal status. But, it is true that if you need a driver licence then they are required to ask yr immigration status before issue you a driver licence. It is a fedral law which applies all states. In the view of what happend on 9/11, Fedral govt. is in the process of linking together the computer systems of IRS, Social Security Administration, DMV with the computer system of INS. They have done already with SSA, therefore, if someone goes there for a ss#, they will verify the legal status of that person with INS thru electronically.In addition, SSA is in process to track down those people who are paying ss taxes on their ss#s which are not allowed to work. However, they have done this yet because they lacks sufficient staffs in order to this job.

Do not give any information to INS which are wrong whether ss# or etc, otherwise they will deny the application. INS will never ask him anything whether he is working or not or anything like that. You do not need to worry about the information you filled on the biograhic forms which might have been showing that he is working, since they will never ask him or you about that since it is just for record purpose only.Pl. NEVER, NEVER disclose any information yourself to the INS which is not asked by them and be specific, short and to the point if they ever ask anything, otherwise you will be damaging the case yourself. Even if yr husband had done some wrong thing in the past or doing now, he can still able to get waiver being married to you. Even though he is illegal, overstayed, and working illegally, it should not be a problem because under the immigration law, these technical violations of immigration laws is forgiven if someone is a spouse of u.s.citizen.

I personally and strongly believe that he will not have any problem in receiving his green card. You need to be in patience.

Thanks so much for all your advise. Your posts always make me relax. I try not to worry too much about my husband's situation, but sometimes when something reminds me of it, then I get a little stressed. I just want you to know how much I appreciate your advice. It really helps. :-)

Yes, thank you Sammy and Bonnie. I am so glad I found this web site, to be able to get some questions answered and talk to people in the same situation. Ok, I am working on filling out the I130, and on the biographical sheet, do I fill out one for myself and one for my husband? And dont put any SS# down for him or even his place of employment? My husband wants his card for the same reasons, to visit his family and to get a decent job worthy of him.

Hi. AS I understand it you only fill out the form for your spouse (i.e. information about you goes in one place, information about spouse in another).

Only put his social security number down if it was actually assigned to him - or his ITIN if it was assigned to him. If he is working under a false number or someone elses number there is no reason to put it down.

As for his place of employment that is a judgement call... if he is working illegally then you can put it down or avoid it. there are pros and cons to both. If you put it down there is always the risk that someone will examine it closely and it will cause some sort of problem. If you don't put it down, in my opinion, you are running a greater risk. i.e. you don't want anything to come up later that could jeopardize his future status. i.e. if somewhere down the line they find out that they were "lied" to,. what will the consequences be?

I don't think that they will examine his place of current employment closely. When we applied we put the names of the places that my husband worked without correct documentation on the G-325A (he lost his job so on the actual I-130 we didn't mention it) and we had no problems because we revealed the information...