To Go or Not to Go: The Risk of Consular processing
One constant is the justified fear that remains when individuals are told that they must leave the security of the U.S. in order to return to their home countries to “consular process”, to attend an immigrant visa interview at the U.S. Consulate in their home country, in order to obtain Lawful Permanent Resident status in the U.S.
Thirty years ago as a young law student in Washington, D.C., I was instructed by the senior partner in the immigration firm in which I was working to tell the firm’s client, in Spanish, that she would have to return home to Guatemala in order to complete the immigrant visa processing—“consular processing”—needed for her “green card”. The attorney then vanished, leaving me alone with the client. I carefully translated his words and instructions but was not prepared for what followed next: the client burst into tears, for the attorney had forgotten to tell me to add the most important portion of the explanation: to tell the client that her absence from the U.S. would only be a temporary one and that once she had completed her interview at the U.S. Embassy she would be able to legally return to the U.S., with her green card in hand.
Thirty years later immigration laws have changed considerably; in fact, they have become much tougher. One constant, however, is the justified fear that remains when individuals are told that they must leave the security of the U.S. in order to return to their home countries to “consular process”, to attend an immigrant visa interview at the U.S. Consulate in their home country, in order to obtain Lawful Permanent Resident status in the U.S.
Unfortunately, this fear, after the passage of the new laws of April of 1996 which created the 3 year, 10 year and permanent bars for illegally entering and remaining in the U.S., is a real and valid fear. Illogical though it may sound (and has been discussed on many occasions), an individual triggers these bars merely by departing from the U.S. for the sole purpose of attending an interview at a Consulate in order to finally legalize their status. Who, then, is “safe”? Consider the following:
Bonita and Jose have 3 children, all under the age of 18. In 2003, Jose filed immigrant visa petitions for the entire family. Only now, after almost 6 years of waiting, is the family able to legally immigrate to the U.S. Of course, they’re already here, living in Norristown, with Jose. Because these petitions were not filed on or before April 30, 2001, Jose’s family members are not grandfathered under section 245i and thus must return home to El Salvador in order to process their green cards at the U.S. Consulate there. Jose and his family have a big decision to make: should they risk appearing at the Consulate, with the pot of gold at the end of the rainbow being their green cards, or should they just sit tight in the U.S., living in constant fear of deportation, and hope and pray that legalization arrives soon?
There’s a bit more information that you need to know in order to help advise Jose and his family. Bonita first entered the U.S. in 2000 with all 3 children. In 2001 she left and took only Carlos, age 9, with her. Her oldest children, Samuel, age 11, and Clara, age 12, remained in the U.S. with their father. Bonita and Carlos returned to the U.S. in 2003. However, in 2004, Bonita’s mother became ill and Bonita was once again forced to leave the U.S. This time she took Samuel with her. Bonita and Samuel remained in El Salvador to care for Samuels’ mother for over a year. They finally returned home to the U.S. in 2005 and have not left ever since.
Well, you say, Samuel, Clara and Carlos are all minors and the bars shouldn’t apply to them. Wrong. More than one illegal entry subjects an individual, no matter what age, to these bars. That means if Samuel and Carlos leave the U.S. to happily attend their interview at the U.S. Embassy their green cards will be denied and they will not be permitted to return to the U.S.
What about Bonita? As an adult, she is unequivocally subject to the bars. If she leaves the U.S., like Carolos and Samuel, she will be stuck in El Salvador.
What about Clara? She is the lucky one. Remember, she has one and only one illegal entry into the U.S. and is still a minor. If she attends her interview at the U.S Consulate I El Salvador and provides proper documentation, she alone will be granted lawful permanent resident status and thus be able to legally return to the U.S.
Confusing? Absolutely. Scary? Absolutely. Unfair? Absolutely. Welcome to the world of consular processing and its many risks.