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WILL I HAVE ANY PROBLEMS IF I GO HOME?
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
I have a 10-year multiple B-1/B-2 visa. I entered the U.S., and
was given six months by the INS Officer at the airport, but overstayed
by only a few years.
I would like to take a brief trip to the Philippines, in order
to visit my family, but I need to get back right away for my job.
I was told that if I "back date" or "back stamp" the immigration
entry date to the Philippines on my passport, to cover up that
I overstayed, that I won't have any problems. After all, I do
have a 10-year visa.
I also heard that if I can secure advance parole, I will be able
to leave without any problems.
If I go back to the Philippines for a brief vacation, will I encounter
any problems when I try to return to the U.S.?
Very truly yours,
N.B.
Dear N.B.:
There are many people who came to the United States on visitor's
visas and overstayed. You definitely WILL encounter problems if
you should try to leave the U.S. and return. Here are some of
the problems you can face:
1. Your 10-year multiple visa is already void because you overstayed.
Section 222(g) states that if a person overstays his period of
authorized stay, even by one day, then his existing non-immigrant
visa is automatically void. (For a visitor, the "period of authorized
stay" is the date stamped on your I-94 by the Immigration Officer
when you first arrived.) In order for a person whose visa is void
under Section 222(g) to be able to re-enter the U.S., he is required
to go back to the U.S. Embassy in his home country and apply for
a new visa. It is unlikely that if a person overstayed, he will
be able to get another visa. Therefore, in your case, because
you overstayed, your existing visa is now considered "void".
2. You will be subject to the 3/10 year bar. Section 212(a)(9)(B)
provides that any person who is out of status between six months
and one year, and then departs the U.S., is barred from returning
to the U.S. for 3 years. If a person has been out of status in
the United States for more than one year, and then departs the
U.S., he is barred from returning for 10 years. In your case,
you have been out of status for several years. Therefore, if you
depart the U.S. for your brief vacation, you will be subject to
the 10 year bar. The INS has also stated that even if a person
who has an adjustment of status application pending, and leaves
the U.S. under advance parole, is, nevertheless, subject to the
3/10-year bar.
3. Back-stamping or back-dating your passport constitutes fraud,
and could result in a lifetime ban. I came across one case where
a person had overstayed in the U.S. for several years. When they
went back to the Philippines, they had their entry stamp to the
Philippines backdated several years, to make it seem as though
that they had returned to the Philippines before the date on the
I-94. When they attempted to come back to the U.S., INS at the
airport was able to track, in its computers, the fact that the
person had overstayed and had back-dated the entry stamp to the
Philippines. That person was considered to have engaged in "fraud"
and was returned to the Philippines on the very next flight. Their
relatives who were waiting for them at the airport did not even
get a chance to see the person.
Remember, the INS has its own, separate, tracking system for visitors,
which is separate and apart from any stamp or records that Philippine
immigration may keep. When a person enters the U.S., they fill
out the arrival/departure record (I-94). At the airport, the INS
stamps the I-94, as well as the person's passport, tears off the
lower portion of the I-94 and staples it to the page of the passport.
However, the upper portion of the arrival/departure record is
retained by INS and entered into their computer system. The computer
is able to track a person's arrival, as well as the date of their
departure. If a person does not depart on the date specified in
the I-94, the computer can already trigger a warning in the computer
system of "overstay". When a person attempts to return to the
U.S., that entry shows up at the INS' computers at the airport.
In your situation, I think it would be very dangerous for you
to take that brief vacation, as you could be subject to the 3/10
year bar, as well as a lifetime ban for fraud (for back-dating
your entry to the Philippines). I know that many people are in
the same situation as you, especially around the Holidays, when
they want to be with their families. However, regardless for the
reason for your wanting to go home, whether it is because you
miss your family, somebody is sick, there is a funeral, etc.,
you do risk being barred for many years, if not forever.
My advice is that you consult a reputable attorney, who can analyze
your situation, to determine if you do have avenues available
in order to enable you to get a green card in the United States.
For example, if you have secured Section 245(i) eligibility (through
any previous family petition or Labor Certification filed before
April 30, 2001), then you have been "grandfathered" under Section
245(i). (Section 245(i) allowed people who are out of status,
worked without authorization, overstayed, snuck across the border,
etc., to be able to adjust status [or be interviewed for a green
card in America], as long as they had a family petition or Labor
Certification filed before the deadline]). Section 245(i) is also
transferable from a petition before the deadline onto a new case
filed after the deadline. For example, if you had a brother, sister,
or parent petition you before the deadline, then you have secured
your Section 245(i) eligibility. But some family petitions can
take between 15-25 years. If you have an employer who is now willing
to petition you, you can "transfer" your Section 245(i) eligibility
from that slow family petition, which was filed before the deadline,
onto a Labor Certification (which only takes about 2-3 years).
This way, you would be able to obtain your green card in the U.S.
Once you obtain your green card, then you will be able to travel
outside the U.S. without any worries and, more importantly, be
able to return to the U.S. without worrying about any of the above
cited problems.
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