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June 29, 2009: I-751 Denied, CLPR Departed, What Next to Return?

I-751 Denied, CLPR Departed, What Next to Return?

I married a US citizen in 2004 but got separated after 1 year. We were living apart but kept close touch as we were working through our issues. When the time for the I-751 interview came, she was so afraid the petition was going to be denied and asked me to lie and tell the officer we were living together. We did that, and the officer denied the petition stating the marriage was not a bona fide one. After that, I hired a lawyer and he got me an administrative departure and I moved back to my country. We are still married and still love each other and she wants me to move back and start a new life again. What should we do?
— Nicolas

Unfortunately, the immigration officer’s decision denying your I-751 joint petition because the officer found your marriage was not bona fide will remain in your immigration file indefinitely. Whenever a future petition is filed on your behalf and you apply for an immigration benefit, you will have to overcome the negative consequences that stem from the denial and its reasoning. As an aside, your statement that you lied to the immigration officer may be another issue because you presumably `lied under oath’ at the interview. A close review of the decision is necessary to see exactly why your case was denied. Assuming you were granted voluntary departure and you are otherwise qualified, you may be able to return to the United States with proper admission documents. With your facts, it appears that your spouse may be able to file another I-130 petition on your behalf and you may be able to consular process.

It is important to note that the specific facts surrounding the voluntary departure order must be thoroughly analyzed because there are many different circumstances under which an order of voluntary departure can be made. For example, when was voluntary departure relief sought? Was it sought at the beginning or conclusion of proceedings? Did the person timely depart?

One issue that you may encounter is a three or ten year bar from re-entering the United States if you accrued 180 days (or 1 year) of unlawful presence in the United States. Also, a grant of voluntary departure will not cure other immigration issues such as criminal or immigration law violations. As you can see, you may be eligible to return to the United States.

However, before you do anything, it would be wise for you to hire the services of an experienced immigration attorney to review your entire immigration record to see what has happened thus far so s/he can properly advise how to proceed in the future.

Michael Shane and Evan Shane, Immigration Attorneys

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