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The Supreme Court ruled 5-4 last week that anyone who is under “voluntary departure” can still petition to remain in the U.S. if their circumstances change i.e. marriage. You can read the details below.
Basically, under older USCIS provisions, once you are in the country illegally, you are doomed. There is no way to petition for legal residency while staying here even through marriage unless you have a 245-I waiver. I believe the new ruling helps to make “illegal” less of a “permanent” scarlet letter. With the new ruling, people who entered legally and overstayed their visas would be allowed, under some circumstances, to pursue legalization from within the United States. A lot of mixed immigration families may be able to sigh in relief at the decision. I do wonder about those that have already had their petitions denied and deported. I suppose the law is not retroactive so tough luck?
Long time coming!
Supreme Court opinion for the case is here
PTI – The Press Trust of India Ltd.
June 17, 2008
US top court eases rules for foreigners seeking legal status.
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US top court eases rules for foreigners seeking legal status
Washington, June 17 (PTI) — In a development that could ease up immigration rules, the top court in the US has ruled that foreigners who overstay their visas can continue to remain in the country to seeklegal status.
Under “some” circumstances, people could withdraw their voluntary agreement to leave the US and continue with an application for lawfulstatus, the top court said in a verdict yesterday.
The ruling, jurists have pointed out, would particularly benefit those married to American citizens.
The federal government had earlier taken a position that intendingimmigrants who left the US would no longer be eligible for a “green card” and if they stayed in the US longer than authorised, they wouldbe disqualified.
“The Supreme Court rejected the government’s hard-line approach toimmigrants and to lawful immigration options,” said Nadine Wettstein, legal director of the American Immigration Law Foundation (AILF), which filed a “Friend of the Court” brief in the case.
“The Court correctly held that immigrants’ rights under the law must be respected,” Wettstein added.
“This decision should send a message to the government,” added Beth Werlin, AILF’s Litigation Clearinghouse Attorney and co-author of AILF’s Amicus Curiae brief.
“The government should have reached this conclusion on its own years ago, rather than fighting through the courts.” The decision resolved majority of visa-related conflicts in the lower courts and involved two parts of the immigration law. One allows people to avoid being deported by agreeing to leave the country voluntarily and the other allows immigrants ,who overstay their visas, make their case to immigration officials.