Murthy Success Story: Obtaining a Nonimmigrant Waiver after Status Violation29 Jul 2011
This recent case, taken on by the Murthy Law Firm, is one in which we were able to successfully obtain a waiver allowing our client to return to the United States in a nonimmigrant status. One must file a waiver application if there is a legal bar on reentering the U.S. due to a prior status violation. We appreciate our client’s generosity in allowing us to share his story with our readers. Confidential information and/or case details are never shared without explicit permission from the client.
Background: Status Violations and C-1/D Status Overstay
Prior to becoming our client, the foreign national in this case worked for a cruise line. He held the appropriate visa for the type of work – a C-1/D (crewman and transit). He complied with the terms of that visa status for a number of years; eventually returning to his home country, where he became formally engaged to the woman who is now his wife. He returned to the United States on the C-1/D visa but, at some point, accepted a new job – not realizing this was a status violation. The C-1/D category is very strict and has severe limitations.
By the time he realized that his status had lapsed, there were no options for fixing the situation and remaining in the United States. His fiancée had become financially dependent upon his support for her education, so he felt he could not leave.
Removal and Voluntary Departure from U.S.
He remained in the United States. After being unlawfully present for more than one year, however, his presence was detected by Immigration and Customs Enforcement (ICE) officers and he was placed in removal (deportation) proceedings.
The individual requested and received voluntary departure. Voluntary departure is permission to leave the United States, rather than being issued an order of removal (deportation) and being forced to leave by the government. He departed the United States in full compliance with the Immigration Judge’s voluntary departure order. The couple married outside of the U.S. and the wife returned to the U.S. to continue her education.
Impact of Departure from U.S. / Settled in Canada
The individual’s errors in not complying with his U.S. immigration status had considerable ramifications on his life and his worldview. Having to leave the United States caused him to reexamine his priorities in life. Upon returning to his home country, much of his time was spent volunteering, helping those in need. Through work in the community, he gained an even deeper appreciation of the importance of family. A strong desire to rejoin his wife and start a family of his own became his focus.
Since he was barred from returning to the United States for ten years, following his period of unauthorized stay, this individual tried to get as close as possible to his wife. He found employment in Canada and obtained permission to live and work there, fully complying with Canadian immigration laws.
In Effort to Return to the U.S., Murthy Law Firm Contacted for Help
While it was possible, of course, for his spouse to visit him in Canada, this couple wanted to live together as man and wife. By this time, she had completed her education and held H1B status. He potentially was eligible for an H-4 visa, if he could overcome his negative immigration history. The Murthy Law Firm was contacted, after an unsuccessful attempt to obtain a waiver of the legal bar to his reentry through a different law firm.
Elements Required to Obtain Nonimmigrant Waiver
Whether to grant a waiver of our client’s ten-year bar to admission to the U.S. was a decision in the hands of the U.S. Consulate in Canada and the U.S. Customs and Border Protection (CBP). These requests are highly discretionary and dependent upon the case details. There are certain elements that must be addressed in this type of waiver request.
First Element: What is the Risk of Harm to Society if Applicant Enters U.S.?
In waivers of this type, the first element one must address is whether there is any risk of harm to society if the foreign national is allowed to enter the United States. The attorneys from the Murthy Law Firm argued that there was virtually no risk that our client would pose any harm to society or public interests if he entered the United States. Aside from the unlawful presence described above, he had demonstrated fine moral character throughout his life and had never committed or been convicted of a crime. We supported our argument with declarations from friends and colleagues. We showed that he had suffered as the result of this violation and that he had gained considerable perspective over time and learned from his mistakes.
Second Element: What is the Seriousness of Applicant’s Prior Immigration Law Violation?
Our client did not dispute that he was inadmissible as he triggered a ten-year bar to admission due to departure from the United States following a period of unlawful presence of more than a year. This immigration law violation is serious. However, we argued that it must be weighed against the circumstances surrounding the incident. We argued that he initially failed to understand the consequences of his actions when he abandoned his stable, authorized employment and took a different job. By the time he understood his mistake, he felt it was too late to reverse course and did not want his fiancée’s education and career to suffer because of his error.
Our client understood that he erred when he accepted a job without understanding immigration law. He explained that, at the time, he was young and caught up in the excitement of building a career and being with his fiancée. His deep regret for his mistakes, and the harsh consequences he suffered as a result, as we explained, engendered a person who is now committed to fully complying with immigration law.
Third Element: What is the Reason for Applicant’s Requested Entry to U.S.?
Our client was seeking to enter the United States to join his wife to live with her as a family. The couple had been separated geographically for several years, which was placing a significant strain on their relationship. Family reunification is a valid and important reason for entry, and is not a frivolous purpose.
Murthy Law Firm Obtains Waiver Approval: Couple Reunited
We submitted the waiver to the consulate and, fairly shortly thereafter, the waiver was granted. Accordingly, our client was granted the H-4 visa and is now reunited with his wife in the United States.
Conclusion: Waivers are Discretionary
In the right circumstances, it is possible to obtain forgiveness for a past status violation through a waiver. This is an example of a successful nonimmigrant visa waiver filed by the Murthy Law Firm on behalf of our client. It is important to understand that waivers are never given in a routine, “rubber stamp” fashion. It is often necessary to allow for a significant amount of time to elapse between the violation and the waiver application. The applicant needs to be able to show, as here, that s/he has a positive history following the violation in question. If one appears to be repeating the problematic behavior, the request for a waiver is not likely to be granted. As can be seen from this example, status violations can cause significant problems and may take years to overcome.