[quote]Conversation With An "Out Of Status" Alien
by Cyrus Mehta

Alien: Am I being called an "alien" because I am out of status?

Attorney: No. All non-citizens are called aliens. Even green card holders.

Alien: My tourist visa is for 10 years. Why am I still out of status?

Attorney: Your status is governed by the date on your I-94 card. A visitor is usually admitted for six months. Unfortunately, you have overstayed your tourist (B-2) status by 183 days.

Alien: So?

Attorney: Upon departing the US, you will trigger the 3 year bar against re-entry into the country. Your visa stamp has also been automatically voided. And you cannot extend or change status in the US.

Alien: Are there any exceptions?

Attorney: The USCIS can exercise discretion to accept a late filing for change or extension of status due to extraordinary circumstances beyond one's control.

Alien: Well, I did not realize the ramifications. I thought that once I found a job, I would rectify my status.

Attorney: Unfortunately, that's not a good enough reason.

Alien: At least I managed to get a job offer as a columnist with an upcoming liberal newspaper in New York City. It also runs a cool blog. I am a prominent writer in my country. The newspaper is really keen to help me out and told me that it was easy to get started on an H-1B visa.

Attorney: I have read your books and articles. Unfortunately, the H-1B cap was reached on April 2, 2007, the first day of the filing period for the 2008 visa allotment. You may be able to qualify for an O visa as an alien of extraordinary ability.

Alien: But did you not say I was toast because I am out of status?

Attorney: Sure. You cannot change status as you are unable to show extraordinary circumstances beyond your control. Even if the newspaper successfully sponsors you, once you leave the US to apply for an O at the US consulate in your home country, it will not be possible to return for 3 years.

Alien: Any waivers to overcome the 3 year bar?

Attorney: Yes. You could request the consul to recommend a nonimmigrant visa waiver under section 212(d)(3) of the INA. If the consul does so, the USCIS may in its discretion approve such a waiver. It is not readily granted, though, especially if one asks for it after having recently departed the US. The consul may also suspect that you entered the US on a B-2 to look for a job.

Alien: That's not true. I initially came to have a blast in New York. I started interviewing with the newspaper toward the end of my B-2 status. I was only offered the job yesterday. In any event, does this 212(d)(3) waiver permanently waive the 3 year bar?

Attorney: Unfortunately not. If you later apply for permanent residency, you will again need to apply for the waiver, and this time, you will need to show extreme hardship towards a qualifying relative, such as a US or permanent resident spouse or parent.

Alien: I don't have such a qualifying relative. Can I not spend the 3 years in the US, once I enter on an O visa and the 212(d)(3) nonimmigrant waiver?

Attorney: I must say that this is a very creative argument. The 3 year bar provision in the INA, section 212(a)(9)(B)(i)(I), does not specifically state that the 3 years must be spent overseas. An argument could be made that the 3 years could also be spent in the US, although the USCIS may not agree with our interpretation of the statute.

Alien: I am really now kicking myself for having met you so late, especially after 180 days. I took advice earlier from a guy who claimed he was an “immigration expertâ€