Minnesota Immigration Lawyers

The Immigration and Nationality Act (INA) section 212(a)(9)(B)(i) bars certain immigrants from returning to the United States if they accrued unlawful presence, i.e., were in the U.S. illegally.  This means that if you have been in the U.S. illegally and then leave the country, you could be prevented from returning for several years.  This applies whether the USCIS knows that you were in the country illegally or not.  If you admit to being in the U.S. illegally or the Immigration Service learns of it, the bar applies.

What are the immigration bars?

If you were in the country illegally for more than 180 days but less than one year and then leave, you are barred from returning for three years.  If you were in the U.S. illegally for one year or more and you leave, you will be barred for ten years.  In addition to the 3 and 10 year bars, there is also a permanent bar you need to know about.

Permanent Bar – INA section 212(a)(9)(C)(i) permanently bars you from returning to the U.S. if you were previously in the U.S. illegally for a year or more, or were deported, left the country, and attempt to return without a proper visa.  Anyone in this situation cannot even seek a visa to return for at least ten years.  After the ten years has passed, you would still need a waiver to return; the visa issuance is not automatic merely because you stayed out of the country for ten years.

What should I do?

Call an immigration attorney before you leave the United States to discuss any possible bars on returning in the future.  As you will see from the information above, it is the departure from the United States that triggers these immigration bars.  This means that if we can fix your immigration status from within the U.S., the bars would not apply.  Not all violations of the immigration law make one subject to these bars and therefore, an analysis of your situation is needed.  In some instances there are waivers available that would permit you to come back before the three or ten year bar is reached, but waivers are beyond the scope of this article.

Minneapolis Immigration Lawyers can be reached at www.cundyandmartin.com .

Seasonal industries often find it difficult to find seasonal workers due to the short duration of the jobs and the tasks involved.  This is where the H-2B visa category can help.  Common industries that utilize the H2B program to supplement their workforce include, but are not limited to: nurseries, golf courses, carnivals and fairs, lawn and landscaping, resorts and hotels, tourist attractions, theme parks, and snow removal.  But the H-2B visa program is not limited to any particular industry.  However, the H-2B visa cannot be used for agricultural work.

H2b visas are also not limited to any particular country.  Workers may come from Mexico, South Africa, China, Russia or any other country where they are located.  In order to simplify the process and keep costs down, it is best to get all of the workers from the same location.  If all of the workers are coming from the same place to do the same job, they may all be included on one petition.

Work Visa Application

Temporary Labor

The first criteria is that the need for the workers and the job must be seasonal; the employer cannot use the H-2B visa to fill an ongoing need.  Almost all seasonal jobs, by definition, meet this criteria because the services or labor are traditionally tied to a season of the year by an event or pattern and is of a recurring nature.

Department of Labor

Before filing a petition with the immigration service – U.S. Citizenship & Immigration Services (USCIS), the employer must first get labor certification from the U.S. Department of Labor (DOL).  This generally requires that the employer prove the seasonal nature of the job and that it cannot find any qualified and willing U.S. workers.

The procedure for getting certification changes almost yearly and therefore, it is recommended that you seek the assistance of an experienced H-2B immigration lawyer to advise on the current practices.

While it may seem obvious, it is nevertheless worth noting that the employer must be a U.S. company.  There are instances in which foreign companies operate in the United States and it must be the U.S. entity that files the petition.

U.S. Citizenship & Immigration Services â?? USCIS

After DOL grants certification, the employer can petition USCIS for the H-2B visas.  The proof required at this stage is somewhat duplicative with the process undertaken with DOL, but USCIS nevertheless must grant the petition before the visas can be issued.

U.S. Consulate / Embassy

If USCIS approves the H-2B petition, it will forward the case to the U.S. consulate where the temporary workers are located.  The workers then go to the consulate to apply individually for their visas.  It is helpful at this stage to use an agency in the foreign country familiar with the H-2B procedures at the consulate to assist in gathering the workers and applying for the visas.

How long can the workers stay in the United States?

Circumstances, however, are not normal. In fact, they are rather brain-dead. Immigration Policies in the EU do not permit long-term Visas, and I have an Indian passport, so I need a visa for Europe, and my Schengen Visa has expired. There is no Belgian Consulate in San Francisco where I can walk in and get a visa today. The nearest consulate is in LA.

It made me think, how come, in this age of electronic communication, we cannot tackle situations like this without physical exchange of documents?

It also made me write an email to Mr. Ronald De Langhe, Consul General and Ms. Véronique Marounek, Consul:

“Your laws, dear friends, are impractical and inhuman. In this day and age, with electronic communication of the utmost advanced calibre being available to us – it beats me why you cannot accept documents like bank statements, emails from family in Belgium confirming the news of the death, and payments by credit card. You have issued me a visa before. You have me on your file. Why can’t you let the immigration in Belgium know that a person with such and such passport number is to arrive on such and such date, to attend a funeral? Why can’t they check the passport number, while you check the electronic documents on this end? I need to take a plane tomorrow, and you don’t have a consulate in the San Francisco area … I do not have the time to send you the documents physically, because I will then miss the funeral.

Your laws and systems are outdated, and obsolete. You can tell me that the laws of no country allow for a visa to be issued without the passport being physically available. Well, my response to that then is that ALL immigration laws are outdated and obsolete. You should ALL look into what you are doing with a magnifying glass, study the progress of modern communication technology, and make a collective decision to join the march of human civilization.”

A lady from the Consulate called me back this afternoon to offer me condolences, and to acknowledge my letter.

Who knows, however, where the immigration reforms stand? I wonder if they even know how to spell technology!