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Immigration Law

Youman, Madeo & Fasano, LLP - New York Immigration Attorney

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Life After a Voluntary Departure Overstay:

| Apr 15, 2019 | Uncategorized

J came to YMF in April of 2017 as he was reporting with the Enforcement and Removal Office (ERO) in Newark, NJ. He had been told he would need to get ready to depart the country if there was no resolution to his case as he had accepted Voluntary Departure (VD) from an Immigration Judge in 2007. As J had failed to timely depart as required the Order of Voluntary Departure converted to an Order of Removal.

J’s story began when he he entered the country unlawfully seeking a better future in 2005. In 2007 he was detained by ICE when ICE went looking for someone else but instead found J who was quickly placed in removal proceedings and accepted VD that same year. However, he never departed the country. In 2012 J observed a police officer in his rearview mirror. A routine traffic stop caused him to be placed under an Order of Supervision with ERO for removal processing as he never departed the country. Since 2012 he had been trying to resolve his immigration status with no luck. When J sought our help we explained that because he was married to a US citizen we would be able to file two special waivers and eventually consular process. However, we needed to convince ERO to give him the time to get these waiver processed.

At the time J had an approved family petition which had been filed by his wife but they were unaware that the law would allow him to file waivers given his unlawful entry and the overstay of the Voluntary Departure Order. The first waiver the YMF team filed is known as an I-212, Application to Reapply for Admission after Deportation or Removal. Once we explained this to ERO they allowed J additional time to file. Less than two months after applying the immigration service approved his application. At that point J became eligible to file the I-601A Provisional Waiver for unlawful presence. As we had been successful in our first waiver, ERO agreed to extend his time to file the second waiver. The second waiver required us to show that J’s wife would suffer extreme and unusual hardship should the waiver be denied. While J’s wife would certainly suffer extreme hardship, it was their three US citizen children who also became our focus as they all receive special education. While the law requires that we show J’s US citizen wife would suffer the extreme hardship, we were also able to argue that given the children’s special needs and the many responsibilities associated with raising three young children J was clearly eligible for the I-601A waiver.

Waivers require attention to detail, careful argument and consideration. The YMF team prepared a thorough application for J which was approved within eight months of filing. At this point J was now eligible to consular process. Given the fact that J had accepted VD but never departed all those years ago, he would still need to depart and interview at his home country’s consulate. However, J was armed with an approved family petition, two waiver approvals and the ERO’s officers’ consent for departure. After almost fifteen years in this country J successfully consular processed in his home country and reentered the United States of America as a Lawful Permanent Resident. All told, J was outside the U.S. for less than four weeks. While many have faced the same challenges and difficulties, J expressed that he considers himself lucky because many are ignorant or told they have no relief options due prior orders. J can now live a dignified life with his wife and children no longer needing to look in his rear view mirror.

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