Will I have any problems if I go home?

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 transferrable 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.

Michael J. Gurfinkel has been a licensed attorney in California for 21 years. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. He is also an active member of the State Bar of California, the American Immigration Lawyers Association, and the Immigration Section of the Los Angeles County Bar Association. All immigration services are provided by an active member of the State Bar of California and/or by a person under the supervision of an active member of the State Bar.

His offices are located at 219 North Brand Boulevard, Glendale, California, 91203 Telephone: (818) 543-5800. His Makati office is located at Heart Tower, Unit 701, 108 Valero Street, Salcedo Village, Makati, Philippines; Telephone: 894-0258 or 894-0239. For more information about the Law Offices of Michael J. Gurfinkel, and to read previously published articles, please visit our website at www.gurfinkel.com

(This is for informational purposes only, and reflects the firm’s opinions and views on general issues. Each case is different and results may depend on the facts of a particular case. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)