Cite as "Posted on AILA InfoNet at Doc. No. 02082845 (Aug. 28, 2002) ."

PRACTICE ADVISORY

LOOK BEFORE HOPPING ONTO THE NEXT PLANE:

TRAVELING ABROAD FOR ALIENS WHO WERE UNLAWFULLY

PRESENT WHEN THEY APPLIED FOR A CHANGE TO V STATUS

by Clarice F. Liao and Bernard P. Wolfsdorf

Enacted on December 21, 2000, the LIFE Act implemented a new V nonimmigrant classification for certain spouses and children of lawful permanent resident aliens. Eligible aliens may enter and work in the United States, and continue to reside here while waiting for the approval of an immigrant visa petition and a current priority date in order to file for adjustment of status or an application for an immigrant visa; and the adjudication of that application. Eligible aliens present in the United States who wish to obtain V nonimmigrant status must file an application to change nonimmigrant status with the USCIS. The benefit of the LIFE Act is that they do not need to have maintained lawful status to apply to the USCIS to obtain V nonimmigrant status. This has been a tremendous benefit to aliens who are unlawfully present in the United States because they can now file applications for employment authorization and for an advance parole travel document in conjunction with their V visa application. However, many eligible aliens are unaware of two serious consequences triggered by traveling abroad after obtaining their V visa approval notice. The first one relates to the 3- and 10-year bars under section 212(a)(9)(B)(i)(I) and (II) of the INA and the second one to the requirement of having a valid V visa endorsed in their passport in order to re-enter the United States.

If an alien accrued more than 180 days of unlawful presence when he/she applied for a change of status to the V visa category, he/she will trigger the 3- or 10-year bar when departing the United States. The current Form I-797 Approval Notice advises the applicant that he/she will be unable to become a lawful permanent resident for a period of 3 or 10 years if he departs the United States after having accrued more than 180 days of unlawful presence. This advice is not highlighted as a “WARNING” to the applicant, but instead, it appears as the last paragraph on the Approval Notice in regular size print.

There is much confusion about the applicability of the 3- and 10-year bars to V visa applicants and immigrant visa or adjustment of status applicants. This confusion arises because at the time of application for a V visa, applicants are not subject to the provisions of USCIS section 212(a)(9)(B) regarding bars to admission to the United States. This means that, for the purpose of admission as a V nonimmigrant, aliens who have accrued more than 180 days of unlawful presence in the United States are not subject to the 3- and 10-year bars to admission. However, the 3- and 10-year bars still apply to applicants for immigrant visas or adjustment of status. Therefore, aliens who have accrued over 180 days of unlawful presence and who depart the United States and re-enter the United States with V visas should be aware that they will not be able to adjust status from V to legal permanent resident for the applicable 3- or 10-year period, unless USCIS approves a waiver at the time of application for adjustment.

It is important to note that section 214(o) of the INA waives the 3- and 10-year bars to admission only for V nonimmigrant admissions or changing to a V nonimmigrant status, and not for purposes of obtaining immigrant status. When a V nonimmigrant applies for adjustment or for an immigrant visa to obtain permanent resident status, he or she is still subject to the ground of inadmissibility under section 212(a)(9)(B) of the INA relating to unlawful presence and the bars to admissibility. For example, if an alien in V nonimmigrant status, who has accrued more than 1 year of unlawful presence in the United States, travels abroad and is readmitted as a V nonimmigrant, that alien, when he or she departed the United States, triggered the 10-year bar to admission under section 212(a)(9)(B) of the Act. Section 214(o) exempts him or her from this ground of inadmissibility for purposes of obtaining V nonimmigrant status, but does not exempt the alien from that ground of inadmissibility when he or she later applies for an immigrant visa or for adjustment to lawful permanent resident status. That means that he or she will be unable to adjust status for 10 years from the date of departure, unless an individual waiver for that ground of inadmissibility is granted. To the extent that he or she may be eligible, the alien applying to adjust status may apply for the waivers found at section 212(g), (h), (i), and (a)(9)(B)(v) of the Act.

Another area of concern involves aliens granted V nonimmigrant status in the United States who need to travel. In such a situation, he/she will need to obtain a V visa from a consular post in order to be inspected and admitted to the United States as a V nonimmigrant. The current Form I-797 Approval Notice instructs the applicant of the need to obtain a V visa in order to re-enter, but the Approval Notice is confusing because it also instructs the applicant that he “will not need to apply for a V visa abroad in order to be admitted if he has traveled to contiguous territories . . .” This language may confuse many Mexicans who have been granted V status in the United States because they could believe that they do not need to apply for a V visa at a U.S. consulate in Mexico since Mexico is a contiguous territory. In this situation, many applicants fail to finish reading the rest of the sentence, which informs applicants that this is only applicable if the alien has “another valid visa, and is eligible for automatic revalidation.” Moreover, the Approval Notice also indicates that “a visa is not required of nationals of certain countries” and that these applicants “should present the lower portion of this notice at the port-of entry with any other documentation necessary to show admissibility.” This may also lead Mexican applicants to believe that they are not required to obtain a V visa and that they can travel and re-enter the United States using solely their Approval Notice.

In many cases, Mexican applicants have accrued more than 180 days of unlawful presence and do not have a valid visa, and therefore, they are not eligible for automatic revalidation. Consequently, they will need to obtain a V visa in their passport from a U.S. consulate abroad in order to be inspected and admitted to the United States as a V nonimmigrant after traveling abroad. They cannot travel abroad and attempt to re-enter the United States with their Form I-797 Approval Notice, as the Approval Notice is not a visa or a valid travel document.

Prior to departing the United States and after determining a departure will not trigger the 3- or 10-year bar to admissibility, an alien granted V status must inquire about V visa application procedures at a U.S. consulate abroad so that he/she can make arrangements for his/her V visa application. For example, V visa applications in Mexico are processed at the U.S. Consulate General in Ciudad Juarez. Mexican citizens who think they qualify for a V visa should either call the consulate or send Form DS-3052 to the consulate. Once the information is taken by telephone or the DS-3052 received, a qualified applicant is scheduled for an appointment within 3 months and in some cases later than 3 months depending on the normal visa workload. The Consulate General in Ciudad Juarez does not have the infrastructure or personnel to handle more than 50 applicants per day. However, the post is currently scheduling 400 per day, but only due to capacity freed up by the retrogression in the family based immigrant visa priority dates. More information about V visa application procedures at the U.S. Consulate in Ciudad Juarez can be found at http://usembassy.state.gov/posts/mx2/wwwhvvisas.html.

Eligible aliens who have accrued more than 180 days of unlawful presence will probably be delighted upon receipt of an Approval Notice for their application to change status to V classification because they will receive employment authorization and apply to travel abroad. There is nothing on their approval notices that indicates otherwise. However, a word of caution is in order because travel abroad for such aliens could have a deleterious effect on their subsequent application for adjustment of status or immigrant visa processing. Although the 3- and 10-year bars do not prevent them from applying for a V visa and re-entering on V status, these aliens will experience the full force and effect of the 3- and 10-year bars when they apply for adjustment of status or for an immigrant visa. Remember, the LIFE Act only exempts V nonimmigrants from the 3- and 10-year bars, it does not provide the same exemption to adjustment or immigrant visa applicants. Furthermore, an alien who does not have a valid V visa stamp in his passport must obtain one in order to re-enter the United States in V status.

(09/13/2002)

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