3. Ask Visalaw.com

In our Ask Visalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can't answer every question, but if you ask a short question that can be answered concisely, we'll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

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1) Question:

I am U.S. citizen. My husband, a Mexican national, was living in the US for 10 years. I filed an I-130 petition for him, which was approved. Acting on advice from our immigration lawyer, he went to Mexico to obtain a visa. The lawyer said it would take a year. It turns out that this was bad advice. He was told by the consulate that he cannot come back to the US. I am not sure why. What can I do to bring him back to the US?

Answer:

As he was living in the US out of status for more than a year, he is barred from returning to the US for at least 10 years.  He may be eligible for a waiver of this bar of inadmissibility if he can show that a denial of the waiver would result in extreme hardship to you, his US citizen wife (qualifying relatives for this I-601 waiver of the unlawful presence bar include US citizen or Permanent Resident spouses and parents). If you filed this waiver application and it was denied because you didn’t show enough hardship, then it may be that you can apply again with a stronger showing of hardship. Otherwise your husband will have to remain outside the US for at least 10 years before he can apply for a visa to return to the US. It is important to remember that he must document his time outside the US, so he should be saving documentation of his residence abroad during this time. 

However, if he has made multiple illegal entries to the US, he may be subject to a permanent bar of inadmissibility. This rule applies to someone who spends a year or more unlawfully present in the US, leaves the US, and then comes back into the US illegally. It also applies to someone who illegally enters the US after being deported. If this is what happened with your husband then he is permanently barred from receiving an immigrant visa to the US. In order for him to apply for a waiver of this inadmissibility, he must first stay outside the US for at least 10 years. If he does this then he can then be eligible to receive a waiver if he can show that a denial of the waiver would result in extreme hardship to you, his US citizen wife.

Note to other readers:  If you have ever overstayed a visa or entered the US illegally you need to consult with a trusted immigration law attorney (and maybe get a second opinion from another attorney) before you leave the US, even if you are the beneficiary of an approved petition.

2) Question:

I currently hold a TN visa that expires in 2012, but my job contract ends before that time.  I would like to know how long I can stay in the US looking for a new job.  I know the TN visa is not transferable but I would like to know if the sponsor has an obligation to tell Immigration that I am no longer their employee.  If so, how long can I stay holding the TN Visa? Is there any chance to change it to a tourist visa to allow me to stay while I look for a new job?

Answer:

The immigration laws do not provide a grace period for a TN. As soon as your TN position is terminated, you will be out of status and are expected to leave the US. However, you can apply for a change of status to B (visitor) status before your position is terminated. As long as the change of status is filed before your employment is terminated, you would then be authorized to remain in the US while USCIS is adjudicating your application for change of status. This could take a couple months. You would not be allowed to work during this time, but you would be allowed to interview for a new position. Your period of stay is only authorized while your application is pending, so if the application for the change of status to B is denied you would have to leave the US.