Consular Processing: How to regularize migratory status out of the US?

When talking about these migratory procedures, it can be talked about ways to regularize migratory status within the US. At times, there are people who have family members within the United States and wish to pursue the American dream; so they try to figure out how to regularize migratory status, either through an over-21 US citizen son/daughter, or a US citizen or legal resident spouse.

It can happen to be in a situation in which the country is exited voluntarily, or due to a deportation order, either due to having reached a long period of unlawful presence in the United States or due to previous convictions; is wished to get back to the United States, but no idea is held on how to regularize migratory status and get the Permanent Residence through a Consular Processing.

How does the Consular Processing work?

This migratory procedure is not the fastest way to regularize migratory status, since Consulates can take longer to process an application; so if it looking to regularize migratory status through Consular Processing, the most recommendable is to submit the application as soon as possible.

If never lived in the United States, have no previous convictions or criminal record within the United States, or have never visited the United States, it could be a relatively easy case. If having an over-21 US citizen son/daughter or a US citizen or Legal Resident spouse too.

Consular Processing consists of two parts.

Parts of a Consular Processing

• I-130 Petition

  The first part consists in submitting the I-130 petition, which tends to take about a year to be approved.

• Consulate Interview

  The second part is to wait for the interview in the migrant’s home country US consulate. These interviews can take up to two years to be scheduled. There are ways to speed up the interview scheduling due to humanitarian reasons. However, it might not be that easy. There must be no previous conviction, criminal record, unlawful presence, attempt to enter the US unlawfully, or problems in the United States.

The process starts when submitting the I-130 petition, which will take about a year for its approval. After that, it must be waited for the Visa Center to transfer the case to the migrant’s home country US consulate, and wait for the interview out of the United States.

Those who have exited the United States, either due to a deportation order or by voluntary exit, can face the pain of having to live separated from their family, sometimes in poverty.

How to regularize migratory status if having previous convictions in the United States and exited voluntarily or due to any deportation order?

In these situations, the most recommendable is to submit a FOIA request. There are different government dependencies in which a FOIA-associated request can be submitted. This will result in, basically, the expedient held both at criminal and immigration levels. Information obtained through the FOIA request is, potentially, the most important part in these migratory procedures. An experienced immigration attorney is required to review the record and determine if there are ways to regularize migratory status.

One of the most common reasons due to which is struggled, either in or out of the United States, is being under the Permanent Bar. The Permanent Bar can happen due to several unlawful entries and exits, an unlawful entry after a deportation order or trying to get back to the United States unlawfully having reached one year of unlawful presence after April 1st, 1997.

Those out of the United States under the Permanent Bar must wait ten years out of the country with no attempts to cross the border before being able to apply for a waiver of inadmissibility. That waiver of inadmissibility is the I-212.

If a case presents several unlawful entries and exits, or a previous deportation order, it’s a good practice to submit a FOIA application to find out if being under Permanent Bar. In such case, ten years must be waited out of the United States before being able submitting a I-601 inadmissibility waiver application, if, for instance, left the country under a deportation order or by voluntaly exiting after reaching certain period of unlawful presence.

The Unlawful Presence happens when having more than six months living in the United States without permission. If having a US citizen or Legal Permanent Resident spouse, it’s possible to apply for Permanent Residence through a waiver in case that is the only issue held.

In those cases, a I-130 application is submitted. With such petition approval, the interview will be scheduled at the consulate, and in that interview the waiver of inadmissibility application will be submitted. Generally, the immigrant is given a blue sheet where the required waiver of inadmissibility type is explained. From that point, the waiver of inadmissibility application must be submitted.

It must be considered that getting approval for a waiver of inadmissibility is neither easy nor fast. A crime often happens due to violating State laws.

Generally, for severe crimes, such as drug traffic or possession, there is no waiver of inadmissibility available, unless it’s marijuana possession under 30g. For stealing or domestic violence cases, in certain scenarios, no waiver of inadmissibility is required. In those scenarios where it’s required, it’s recommended to submit the waiver of inadmissibility application with evidence and solid arguments if it’s something immigration law can let go.

For situations with severe crimes, the U Visa, the Humanitarian Visa, for people who were victim of certain types of crimes in the United Staes and help the government with information of the crime he/she was a victim of, can be a method. If being out of the United States and were victim of certain crimes within the country, there is the possibility to regularize migratory status through the U Visa if the Police Department is willing to sign the corresponding forms in exchange of being helped with information about the crime.

The U Visa is not a fast process, especially when being out of the United States. This can provide a way to reach Permanent Residence, since it can forgive certain, sometimes severe, crimes.

What risks related to submitting a FOIA-associated application are there?

There is no risk at all. It’s understandable to be afraid when having the idea that one must not be in the United States. It must be considered that, in order the get information through FOIA, it’s not neccesarhy to submit address information, since the lawyer can use his/her address. There is no information on where is the immigrant located when submitting a FOIA application.

It would be irresponsible to start a migratory procedure without, before, having submitted the FOIA-associated application, especially when it comes to Consular Processing, process through which is pretended to regularize migratory status when being out of the United States.