Will I have any problems if I go home for a vacation?

Dear Atty. Gurfinkel:

I have a 10-year multiple B-1/B-2 visa. I entered the US, and was given six months by the Immigration Officer at the airport, but overstayed by only a few years.

I would like to take a brief vacation to the Philippines, in order to visit my family during the holidays, but I need to get back to the US right away for my job. I was told that if I "back date" or "back stamp" my entry date to the Philippines on my passport, (to cover-up that I overstayed), that I won’t have any problems. After all, I do have a 10-year visa.

I also heard that if I apply for advance parole, I will be able to leave and return to the US without any problems.

If I go back to the Philippines for a brief vacation, will I encounter any problems when I come back to the US?

Very truly yours,

N.B.

Dear N.B.:

There are many people who came to the United States on visitor’s visas and overstayed. You definitely WILL encounter problems if you should try to leave the US and return. Here are some of the problems you can face:

Your 10-year multiple visa is already void because you overstayed. Section 222(g) states that if a person overstays his period of authorized stay, even by one day, then his existing non-immigrant visa is automatically void. (For a visitor, the "period of authorized stay" is the date stamped on your I-94 by the Immigration Officer when you first arrived or the expiration of any extension.)

You will be subject to the 3/10 year bar. Section 212(a)(9)(B) provides that any person who is out of status between six months and one year, and then departs the US, is barred from returning to the US for 3 years. If a person has been out of status in the United States for more than one year, and then departs the US, he is barred from returning for 10 years. In your case, you have been out of status for several years. Therefore, if you depart the US for your brief vacation, you will be subject to the 10-year bar. The DHS has also stated that even if a person leaves the US under advance parole, the person is still subject to the 3/10 year bar.

Back-stamping or back-dating your passport constitutes fraud, and could result in a lifetime ban. US Immigration Officers at the airport are able to track, in their computers, a person’s entries and departures from the US, and can detect the fraud, resulting in your immediate airport-to-airport removal from the US.

In your situation, I think it would be very dangerous for you to take that brief vacation, as you could be subject to the 3/10 year bar, as well as a lifetime ban to re-enter the US for fraud (for back-dating your entry to the Philippines). I know that many people are in the same situation as you, especially around the Holidays, when they want to be with their families. However, regardless of the reason for your wanting to go home, whether it is because you miss your family, somebody is sick, there is a funeral, etc., you do risk being barred for many years, if not forever.

My advice is that you consult a reputable attorney, who can analyze your situation, to determine if you do have avenues available in order to enable you to get a green card in the United States.

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