September 20, 2010: How Can This Family Bring Back Husband/Father After Removal?

How Can This Family Bring Back Husband/Father After Removal?

My husband and I have been married for almost five years and have three kids. He was here illegal for 8 years. Eleven months ago he got stopped for speeding and was put in jail. They gave him voluntary departure and had to leave the U.S. in three months, which he did.

I filed papers for him 3 years ago when I was still a permanent resident. I became a U.S. citizen 7 months ago. My question is: What can I do to bring him back and how long will it take?
— Anonymous

Generally, when a person files an I-130 visa petition as a lawful permanent resident on behalf of their spouse and then the petitioner becomes a United States citizen, the I-130 is automatically converted from a 2A preference petition to an immediate relative visa petition. The difference is that with an immediate relative petition, your spouse does not have to wait for a visa number to become available before s/he is eligible to apply for an immigrant visa.

As a side note, according to the October 2010 visa bulletin, visa numbers are available for petitions filed before April 1, 2010 in the 2A category, so you would not necessarily have to be a citizen for your spouse to immigrate at this time if the visa petition was filed before that date.

Even though the I-130 petition was automatically converted to an immediately relative petition, it may be wise to notify the Service Center where the I-130 petition is pending that you are now a United States citizen by providing it with a copy of your Naturalization Certificate and by calling the National Customer Service phone number and about the same.

As for your husband returning to the United States, because he was in the United States for more than a year in unlawful status, which presumably caused him to accrue at least a year of unlawful presence, his departure from the United States triggered a 10 year bar from returning to the United States. To overcome this bar, your husband will have to prove that his United States citizen spouse (or parent) would suffer extreme hardship if he is refused admission to the United States.

Before filing this waiver, it would be wise to consult with an experienced immigration attorney to discuss the specific facts in your case and to develop a strategy for getting the waiver approved. It is extremely important that the waiver is put together correctly and as strong as possible.

Michael Shane and Evan Shane, Immigration Attorneys

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