What is Adjustment of Status?

Adjustment of Status is the process used by certain people already in the United States to apply for a green card without having to leave the country. It allows an applicant to move from a temporary nonimmigrant status to lawful permanent resident status inside the U.S., instead of completing the process through a U.S. consulate abroad, which is known as consular processing.

EWI stands for “Entry Without Inspection.” It describes entering the United States without going through an official port of entry or being inspected by an immigration officer. Even if a person later encounters or is processed by border officers, the original entry is still considered EWI. This is a specific legal concept and is not the same as simply saying someone entered the country “illegally.”

What is Consular Processing?

Consular processing is the procedure used when a person applies for U.S. permanent residency through a U.S. embassy or consulate outside the United States. A qualifying family member or employer files a petition, and once it is approved and a visa is available, the applicant completes the immigrant visa process at the consulate in their home country. After entering the United States on that immigrant visa, the person becomes a lawful permanent resident.

Why Do I Have to Consular Process?

Some applicants must complete their green card process outside the United States because of how they entered the country or their immigration status at the time they apply. People who entered without inspection and certain individuals who are out of status on the filing date are often required to leave the U.S. and apply at a consulate in their home country. There are limited exceptions, such as qualifying for relief under section 245(i), that may allow processing inside the United States.

What are PERM Applications?

PERM is the employment-based labor certification process that many U.S. employers must complete before sponsoring a foreign national for permanent residence. The employer first obtains a prevailing wage determination from the Department of Labor and then conducts specific recruitment steps to see if there are qualified U.S. workers available for the position. If no qualified U.S. workers are found and all requirements are met, the employer can file a PERM application. An approved PERM allows the employer to move forward with sponsoring the employee’s green card.

Habeas, short for Habeas Corpus, is a legal procedure used to challenge unlawful or excessively long detention by the government. In the immigration context, it is often used for people who have been detained for a long time, frequently after receiving a removal order, when the government has not carried out the deportation. Through a Habeas Corpus petition filed in federal court, a judge reviews whether there is legal justification for continued detention and can order the person’s release if the detention is found to be unreasonable.

What Are Removal Proceedings?

Removal proceedings are the formal court process in which the Department of Homeland Security seeks to deport someone it believes is in the United States in violation of immigration law. During these hearings, an immigration judge decides two main questions: whether the person is removable and, if so, whether they qualify for any form of relief that would allow them to stay in the United States. The judge hears evidence and arguments from both sides and issues the final decision.

What is a Master Calendar Hearing?

A master calendar hearing is the first hearing in most immigration removal cases. It is a preliminary hearing where the immigration judge handles scheduling and procedural issues, such as confirming the charges, taking pleadings, identifying any applications for relief, and setting future hearing dates. The judge may also make important decisions at this stage, including whether to schedule an individual merits hearing, deny certain applications, or in some cases order removal if appropriate.

What is Writ of Mandamus?

A writ of mandamus is a lawsuit filed in federal court asking a judge to order a government agency or official to perform a legal duty that has been unreasonably delayed. In immigration cases, it is often used when an application or petition has been pending for a long time without a decision. To succeed, the applicant must show that the agency has a clear duty to act, that the applicant has a right to a decision, and that the delay is not reasonable. If the court agrees, it can order the agency to make a decision on the case.

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Feb 02, 2021

By Kriezelman Burton and Associates

What is the Ten-Year Bar?

Q: What is the Ten-Year Bar?

The ten-year bar applies to individuals who accrue more than one year of unlawful presence in the United States and then depart. Once they leave, they become inadmissible and are generally barred from returning for ten years. In some cases, a waiver may be available. If the applicant can show that a U.S. citizen or lawful permanent resident spouse or parent would suffer extreme hardship if they had to remain outside the country, they may qualify for a waiver such as Form I-601 or I-601A.

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Welcome back to Kreizelman Burton & Associates’ series on immigration terms and abbreviations. I’m Erin Cobb, and we’re going to be talking about the 10-year bar. What it is, when it applies, and what you can do about it will be all be discussed in today’s post.

So, who does the 10-year bar apply to? The simplest way to think about it is that it applies to someone who is here without status for more than one year. However, that is oversimplifying things. Really, it applies to someone who is here and has accrued unlawful presence for more than one year. Now, unlawful presence is a special word with a special meaning.

Congress and immigration services have set out some special situations where someone might be here without any status, but sill does not accrue unlawful presence. Some of the most common of these situations include:

You have DACA
You have a pending asylum application, except if you’ve worked without permission
You’re under 18, no matter your status
You’re in valid visa status
You’ve filed to extend or change your visa status, such as a visitor to a student, and are still waiting on a decision
Your visa is one that is valid for the duration of status or D/S, like some F, J, or M visas

If you are in the U.S. without status, and none of the situations apply to you, you are occurring unlawful presence. If you have more than one year of unlawful presence and depart the country, you will have to wait outside for 10 years before you can even apply to come back in. There is, however, a waiver available that can prevent this 10-year bar from blocking you. If you can show that your permanent resident or U.S. citizen spouse or parent would suffer extreme hardships if you are not permitted to return immediately. This waiver is known by a couple of names. Commonly, we refer to it as an unlawful presence waiver or an I-601 waiver, as that is the form that is used for it.

There is another waiver that can help you lessen the penalties and time you’d have to spend outside the U.S. This waiver is called a provisional waiver. This is a great option for many because you can apply for the waiver before leaving the country. The standard is the same as the I-601 waiver, but it takes out some of the risk and length of time you’d have to wait outside the country prior to applying to enter again.

While there are additional bars that prevent immigrants from entering the country, this is the most common. As you can tell, this is all quite complicated, and the effects can be both life-changing and long-lasting. So, if you are thinking about departing the U.S. to apply for your immigrant visa, please be sure to talk to an immigration attorney first to have everything in place before you go. This can help you complete the immigration process faster once you can re-enter the country.

As always, if you or someone you know is in need of an immigration lawyer, please do not hesitate to contact the attorneys at Kriezwelman Burton & Associates. We are here to help you navigate the complex world of immigration.

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Our family is sincerely grateful to attorney Nicole M. Provax from Kriezelman Burton & Associates, LLC for her professionalism, dedication, and support, as she guided us through every step with care and understanding. Thanks to her guidance, our case reached a positive outcome. We truly appreciate everything she has done for our family and highly recommend her and the firm.

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I am grateful for the guidance and support we received from Kriezelman Burton & Associates. Attorney Andrea was AMAZING, always helpful, responsive, and kept us updated with every new development(even at late hours). We first reached out to her when someone close to us was detained by ICE while working construction inside a friend’s house. Andrea immediately stressed the importance of filing a habeas corpus petition as soon as possible,…

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We are incredibly grateful for the guidance and support we received from Kriezelman Burton & Associates during our family’s Green Card petition process. We had a very complicated case that several other lawyers could not take on, but that was not the case with Kriezelman Burton & Associates. From the beginning, our Attorney Mr. Kevin Raica made us feel heard, supported, and confident that our case was in good hands.…

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I had a great experience working with Matthew Kriezelman and Kamila Lada. They were professional, knowledgeable, and truly cared about my case. They always took the time to answer my questions and kept me informed every step of the way. Their kindness and attention to detail made a stressful process so much easier. I’m very grateful for their help and highly recommend them.

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I am writing to appreciate Attorney Erin and Attorney Andrea for making it possible for me to be represented within a short notice. If you both ever read this, I truly want to express my heartfelt gratitude to both of you. Andrea was right by me, and I felt her presence through it all. I cannot speak enough about this firm. I will continue to send people to this firm…

Client

I had the pleasure of working with attorney Khiabett Osuna and Rafael. They were knowledgeable, professional, and genuinely cared about my case from start to finish. They were both very kind and every question I had was answered promptly, and they always made me feel supported and informed. Their attention to detail and compassion made a stressful process so much easier. I’m beyond grateful for their hard work and highly…

Mariana P.

I had a wonderful experience working with Kriezelman Burton & Associates, LLC. From start to finish, the team was professional, knowledgeable, and truly dedicated to guiding me through every step of the process. They made what could have been a stressful situation feel smooth and manageable, always answering questions quickly and keeping me updated. I especially want to thank Khabit for his outstanding support—he was patient, detail-oriented, and went above…

Luis B.

Many thanks to attorney Kevin A Raica and his assistant Rafael Rodriguez for all their help. My immigration case went very smoothly and quickly.

Ines C.

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What is the Ten-Year Bar?

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