The following scenario has come up a few times in online discussions with my fellow immigration lawyers: a couple walks in to meet with the immigration attorney. One spouse is a U.S. citizen and the other is an undocumented immigrant who has come in from or through Mexico without inspection. That is, came in without a visa or border crossing card and did not go through a checkpoint to enter the U.S. The undocumented spouse will be here for a few months or a few years, and then his or her mother or father will get sick. The undocumented spouse will return to Mexico to visit the parent for a few weeks or months, then comes back to the U.S. Sometimes, the undocumented spouse will return to Mexico a few times. The husband and wife would like to know if the undocumented spouse can get a green card through the marriage to the U.S. citizen. Unfortunately, short answer is “No,” or “Maybe after your spouse has been out of the country for at least 10 years.” We as attorneys are often surprised that the immigrant community is still seemingly unaware of the dangers of going back and forth to Mexico when one has no legal status and how it might affect their immigration cases in the future.
There are other issues in this scenario that may possibly be overcome with the proper legal strategy, such as the lack of proof of lawful entry to the U.S. However, what cannot be overcome without the spouse leaving the U.S. for at least 10 years is the ineligibility for an immigrant visa due to what is called the “permanent bar.” Attempting to enter or entering the U.S. without permission after a past deportation or one year’s total stay in the U.S. without lawful immigrant status results in permanent “inadmissibility” as an immigrant. The permanent bar comes from Section 212(a)(9)(C)(i) of the Immigration and Nationality Act, which makes inadmissible “Any alien who (I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or (II) has been ordered removed under section 235(b)(1), section 240, or any other provision of law, and who enters or attempts to reenter the United States without being admitted.” It is technically not “permanent,” but the spouse cannot return to the U.S. for a minimum of 10 years, and must then apply for consent and a waiver from the government, which are not easy to do. The permanent bar applies to those who made these types of entries after April 1997, when a change in the immigration laws went into effect.
The bottom line and in simple terms – immigration-wise, it is a bad thing to come back and forth to the U.S. unlawfully. It is also a bad thing if you have been deported and come back to the U.S. unlawfully. This is not meant to cast moral judgment on people who come in to the U.S. unlawfully to seek a better life. But be warned that while doing this once may be forgiven by the government, doing this more than once means that you may never be able to become a lawful resident of the U.S.
If this scenario applies to you, you should speak with an immigration attorney (NOT a notario!) to see if there is anything that you can do for your spouse. Otherwise, if you file a petition for your spouse, you could end up putting him or her in removal proceedings in the Immigration Court. Alternatively, if you send him or her out to pick up a visa abroad, the visa will be refused and your spouse will be out of the country for a minimum of 10 years.