Yes, I am amazed, that is my dad's file. So that is a dead end, and my only options are still await for immigration reform, or leave the country. Which is what I knew when I started, but now I can take peace in knowing there is nothing I could do. All of you has been tremendously helpful, and I thank you. If you don't mind, there is still just one last thing I would like to know about. It is regarding BigJoe5's post earlier, I am not sure I understand the context. Could you clarify?
"In that you were a child and not responsible for your overstay, if you departed quickly, you would receive leniency in a waiver application IF you submitted one based on a bona fide immigrant or non-immigrant visa.
In order to obtain MOST non-immigrant visas you must overcome a statutorily mandated presumption of "immigrant intent". If your family remains in the U.S., that will be a very hard sell to anyone let alone a cynical Consular Officer or USCIS or CBP Officer."
If I do leave and I will want to re enter again 10 years from the date I leave, Would it be much harder for me to obtain a visa, having the status I had today. My family will leave when I leave, and I will be as legit as possible when I apply, but I obviously can't undo what has happened to today.
I don't understand the issue of non-immigrant or immigrant visas, and the immigrant intent. Would a tourist visa or temporary work visa be non-immigrant visas? If I wish to stay in the country I would have to apply for immigrant visas won't I? But if I am trying to just visit I must prove that I am not trying to stay, right?
Lastly, on what ground can I apply for a wavier on the 10 year re entry bar. Does the quoted text say I should get a wavier because I was a child and unknowingly stayed, although in the context of the law once I am over 18, I was responsible for my overstay? Is there any other grounds I possibly get a wavier?
lxz,
The non-immigrant classifications are listed in the INA among the definitions section. INA 101(a)(15) [8 U.S.C. 1101(a)(15)] is the definition of "immigrant" and all of its subsections define "non-immigrant" classes. MOST, but not all, require an unreliquished foreign residence that the individual has no intention of abandoning.
Basically, it's every alien is an immigrant EXCEPT, ...........
Certain subsections do not require a non-immigrant intent OR do not require an unrelinquished foreign residence OR have diplomatic immunity OR immunity/priviledge by a treaty. ( Most H's, AND, L, K, V, O-1 and O-3, some P's, TN's, T's, U', A's, E"s, G's....) Some of these can adjust in the U.S. (I-485's) and others are OK to seek Consular Processing.
SEE:
http://frwebgate3.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=ytkPY9/0/2/0&WAISaction=retrieve for above.
INA 214(b) [8 U.S.C. 1184(b)]
(b) Presumption of status; written waiver
Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of section 1101(a)(15) of this title, and other than a nonimmigrant described in any provision of section 1101(a)(15)(H)(i) of this title except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled
to a nonimmigrant status under section 1101(a)(15) of this title. An alien who is an officer or employee of any foreign government or of any international organization entitled to enjoy privileges, exemptions, and immunities under the International Organizations Immunities Act [22 U.S.C. 288 et seq.], or an alien who is the attendant, servant, employee, or member of the immediate family of any such alien shall not be entitled to apply for or receive an immigrant visa, or to enter the
United States as an immigrant unless he executes a written waiver in the same form and substance as is prescribed by section 1257(b) of this title.
******************************************
The 10 year bar is just that. Once 10 years of presence outside the U.S. have passed, it becomes a non-issue and ancient history (not a factor to be considered in the visa applications that come after that ban has expired).
HOWEVER, if you have an Order of Removal and depart, you MUST
seek consent to return before attempting to return. USCIS Form I-212 (look at the botton of page 1 and that will be the part that applies to you.) You need to CONFIRM if you actually have a Removal Order under which you will be departing. (You can file a G-639 FOIA request to get a copy of what's in your A-file, the whole family should probably file forms.)
NO, you will not be exposing yourselves to being picked up by ICE just by filing a FOIA request with USCIS. You will be dealing with FOIA/PA clerks who just make photocopies and don't have any law enforcement responsibilities (and, they don't give a crap, it's NOT in their job description.) They make copies of what you are entitled to obtain and bill you for the photocopy service.
Look up and read INA 212(a)(9)(A) (
i)(II) and (
iii) it is easily found at
www.uscis.gov
