Risks in changing or extending immigration status

The increase in the “undocumented” population in the United States is a result of several factors. One cause is overstaying visa holders. These are people who entered the US legally but eventually stayed on after their visa period expired.

After the 9/11 attacks, the US has taken a harder line against visa violators. The number of deportees and cases of expedited removal at the airport have increased dramatically. But despite the restrictions, there are still those who continue to violate their immigration status for varying reasons.

Anna and Mario, for example, went to the US on visitors’ visas to celebrate their wedding anniversary. A few days after their arrival, Anna fell ill and was hospitalized. Most of their vacation money went to paying for her hospital bills. When she recovered, they only had a few days left on their authorized period of stay. Both Anna and Mario filed for an extension of their visas.

While their request for extension was pending, Anna was offered a job as an administrative assistant. The employer promised to file an application for a “working” visa for the couple. However, instead of having her change of status handled by a competent legal counsel, the employer instead retained a paralegal.

The application for change of status from visitor’s to working visa was filed without waiting for the results of their visa extension application. This extension application was subsequently denied for failure to state valid reasons for the application.  Unfortunately, the petition for “working” visa was also denied because the position offered to Anna did not satisfy the requirements of an H1B “working” visa. Anna and Mario lost their immigration status but continued to stay on. Anna later gave birth to their first child. They have been in the US for five years now without legal status. What could Anna have done? Are there still options that available to her?

Unlawful status

People like Ana and Mario, whose period of authorized stay has expired are often referred to in our lingo as ‘tago nang tago’ or “TNT.”

But there are various ways to avoid losing immigration status in the US. One is to file for an extension of stay, the other is through a change of status to another nonimmigrant visa. Or, quite simply, a visitor may just leave the US prior to the expiration of the period of authorized stay.

The visitor’s visa holder must take seriously the options of extending or changing one’s status. denial of such requests has serious consequences.

Automatic revocation of visa

It is important to note when a visa holder begins to violate the law. A period of overstay even of only one day will result in automatic revocation of the visa issued by the US Embassy in Manila.

Three and 10-year bars

One who has fallen out of status for more than six months but less than one year will be barred from reentering the US for three years. While one who has overstayed for more than one year is barred from re-entering the US for 10 years.

Visitor’s visa holders who apply for change or extension of status will not be considered to have accrued unlawful presence while their applications are pending with the US Citizenship and Immigration Service. Once these applications are granted, they retroact to the application date or the end date of the original visa. However, if the applications are denied, unlawful presence begins the day after the denial.

Anna, who has become a “TNT,” faces a threat of either deportation if she stays or the ten year bar if she voluntarily departs. In either case, it is a lose-lose situation for her. What she should have done was to assess her options well before deciding to apply for the change or extensions. Or as soon as it was denied, she could have departed and returned with a new visa that was more appropriate to  the nature of her job offer.

Overstay vetting program

The US Department of Homeland Security (DHS) implemented last year an Overstay Vetting Program that tracks down overstaying visitors.  Considering that millions of visa violators are currently residing in the US, the DHS has prioritized individuals who are threats to national security or aggravated felons. Nonetheless, it would be better to be proactive about travel plans to avoid harsh consequences of losing one’s immigration status.

(Tancinco may be reached at [email protected] or at 887 7177 or 721 1963)