Hi there,
The quick answer:
- if she leaves the US, she cannot return for 10 years
- there are some amnesty bills on the horizon, but that's normal, and
it will take some time before any are possibly passed
- as an overstayer she must apply for any new visas from her own
country.
1. Leaves and returns
---------------------
Immigration attorney Michael J. Gurfinkel has created a well-written
reply to a Filipino person in the same situation. Basically, once she
leaves, she cannot return to the US within 10 years. The INS have ways
of knowing when you arrived and departed.
http://www.gurfinkel.com/articles/2001/december9-2001.htm
Possible loophole which I couldn't verify:
A: There is a way around this problem (DO NOT TRY THIS WITHOUT AN
ATTORNEY!): the bans do not apply to people who get deported. However,
deportation carries a separate five-year ban. You can avoid that ban
by applying for voluntary departure and then leaving - but first, get
yourself into deportation proceedings to effect the cancellation of
the original ban.
http://www.kamya.com/intro/h1b_faq.html
I personally overstayed in the UK for a number of years, and was
refused entry when I tried to return, despite having a fresh passport.
2. Five Year Amnesty
--------------------
There are a number of amnesty bills that may get passed one day, but
it would be reasonable to expect them to take a few more years of
debate before any possibility of being passed, with immigration and
security being such touchy issues:
S. 1291, "Development, Relief, and Education for Alien Minors Act"
(DREAM Act)
Primary rules: be at least 12 and less than 21 years old, and have
maintained a continuous physical presence in the U.S. for the 5 years
preceding enactment
http://www.fairus.org/html/s1291report.html
H.R. 500 -- Representative Luis Gutierrez (D-IL)
"...anyone who arrived in the U.S. by February 6, 2001, would be
allowed to apply for legal residency after 5 years had passed."
http://216.239.51.100/search?sourceid=navclient&q=cache:http%3A%2F%2Fwww.fairus.org%2Fhtml%2Fwrapup.htm
November 5, 2002
Senator Gephart Proposes Earned Legal Adjustment Bill
Possible "Amnesty" for Illegal Aliens
http://www.imakenews.com/badmuslaw/e_article000106126.cfm
Previous Amnesties
http://www.flsuspop.org/docs/amnesties.htm
3. Sponsor or apply for an H1-B visa
---------------------------------------
Once you overstay, you cannot apply for any kind of new visa within
the USA - you have to return home.
Q. Unfortunately, I overstayed my visitor’s visa and am still in the
United States. Can I apply for my or an H1 now that I have an
employer?
A. No. Once you overstay, you must apply at the consulate in your
country. Overstaying is never a good idea and carries severe
consequences.
http://www.worldvisas.com/USA/faq-h1.htm
My Thoughts
-----------
Remaining in the USA illegally is an option many would take, because
the downsides are actually less. Folk who are deported only receive a
5-year ban, and before the INS catches them, an amnesty might be
granted.
If she is in a serious relationship, getting married could be the
answer:
Assume that a deportation or exclusion procedure has been started
against you because the INS has found your status is illegal, or that
you entered the U.S. without the proper documentation. While it is
pending, you marry an American citizen. You now may file your petition
and the application for Adjustment of Status. You and your spouse are
no longer prohibited from proceeding with the immigration process, as
you would have been in the past-and you will not be forced to live
outside the United States for two years.
However, because of the circumstances surrounding your marriage, your
marital status is still suspect. After all, you did get married with
the "shotgun" of a possible deportation or exclusion order facing you.
You, the newly married alien, will have to provide clear and
convincing evidence showing that the marriage was entered into in good
faith and not for the purpose of getting a green card, and that no fee
or financial arrangements had been given or made in the filing the
petition.
You will have to clearly establish that you married the love and with
a real commitments-not simply to evade your deportation or exclusion
from the United States.
http://www.legalpaladin.com/resources/visa.htm
Search Strategies
-----------------
amnesty "illegal aliens" "5 years"
overstayed "return to the US"
overstayed apply H1-B
If you would like me to clear up any part of my answer, just ask for a
clarification.
Best wishes,
robertskelton-ga |
