This week in my Consulta Migratoria column, which appears in LaOpinion.com and other impreMedia online publications, I answer questions from readers. Each case is different and the answers vary according to each person's immigration history. Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before beginning any process.
I have read that immigration authorities can cancel a provisional waiver of punishment law that has already been approved. Under what circumstances can this happen? --Daniela H.
Daniela, a provisional punishment law waiver may be cancelled if the U.S. Citizenship and Immigration Services discovers that the applicant lied on his or her application for a provisional punishment law waiver. Depending on the severity of the lie on the application, it may be sufficient cause to revoke approval of a granted waiver. Generally, a lie is considered serious if, upon learning the truth, the applicant would be ineligible for the benefit granted.
The provisional waiver of the penalty law may also be automatically cancelled if the U.S. Department of State cancels an immigrant visa application process or the consular officer determines that the applicant has committed other acts that make him or her inadmissible to obtain an immigrant visa.
Finally, the provisional penalty law waiver is automatically cancelled if a person reenters or attempts to reenter the United States without authorization, without passing inspection or being paroled, before or after his or her provisional penalty law waiver is approved or before his or her immigrant visa is issued.
Approximately 8 years ago I entered the United States illegally. I was 17 years old and immigration agents detained me at the border. After a week of detention they let me leave to join my family members in the United States. I was told that I had to transfer my case to the immigration court closest to my destination and attend future hearings in front of an immigration judge. I never appeared in court for fear of being sent back to my home country. I am now married to a U.S. citizen. I want to know if I can apply for a waiver and obtain permanent residency through my husband. -- Yuris B.
Yuris, your case is complicated and more information is needed to better advise you. For example, it is important to know the status of your case in immigration court and whether you have been given an order of removal (deportation) in your absence because you did not show up for the hearing with the immigration judge.
If you are subject to an order of removal, you will not be able to obtain permanent residency until your immigration court case is reopened to continue working on the case. This will give you the opportunity to apply for permanent residence through your spouse. Because it has been many years since you were detained, the immigration court will only reopen your case if you can show that you never received notice of your immigration court hearing, the U.S. Immigration and Customs Enforcement (ICE) attorney is willing to file a motion to reopen along with you, or the immigration judge reopens your case on his or her own motion.
Your case is also difficult because you entered the United States illegally. Generally, people who enter the U.S. illegally cannot obtain permanent residence in the U.S. unless they are covered by special laws, such as section 245(i) of the U.S. Immigration and Nationality Act. If you cannot apply for permanent residency within the United States, you will have to leave the country and this could create more difficulties for you. It is imperative that you consult with an immigration attorney before you begin any proceedings.
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