We just received approvals for a husband and wife from Santa Ana. The couple last entered the United States in 1995 and have lived here ever since. In early 2001, the husband’s employer filed a labor certification application for him before the sunset date of April 30, 2001. This made him eligible for INA 245i. The couple’s eldest daughter was born in the United States, and, after she turned 21 years old, the couple approached me about adjusting their status based on being the parent of a US citizen daughter.
We filed the I-130 visa petitions with the daughter as the petitioner and the parents as the beneficiaries. Along with the visa petition we filed the I-485 applications and all the other necessary forms. The interview as originally scheduled on a day that I was in court in Los Angeles, so we rescheduled for a later date.
The only issue that seemed potentially problematic was that the husband was in the United States prior to 1995. He was caught by INS and forced to return to Mexico. He was worried that this would count as a prior deportation which might complicate his case. I explained to the officer that the prior visit to the United States and my client’s subsequent return to Mexico was not a removal or deportation because my client never saw an immigration judge. Prior to IRRIRA, legacy INS did not have the expeditious removal authority it has today. Before IRRIRA, an alien could only be removed if he was ordered deported by an immigration judge. The unlawful presence bars of INA 212(a)(9) did not take effect until April 1, 1997.
In Matter of Rodarte, the BIA held that Congress did not intend for section 301(b) of IRRIRA to apply retroactively. A Department of Homeland Security Memo stated that INA 212(a)(9)(C) does not apply to re-entries that pre-date April 1997.
In the interview the issue did not even come up and the interview went smoothly. The client was very happy to become a lawful permanent resident after over 15 years of waiting. He and his wife were excited and plan to pursue naturalization in five years when they become eligible.
If you are considering the green card process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand the options available to you.