Hi there, I'm writing this email on behalf of my sister who is a USC married to an illegal Columbian and they just had a child in January. He has been there for about 7 years and I've read that he can adjust his status (as long as application is lodged before his overstay is detected) and his overstay will be forgiven since he is married to a USC and will have to pay a fine. BUT this only applies to people who entered legally and then overstayed. The problem is that we can't figure out if he did in fact enter legally. Here is what happened:

He arrived in the states at the POE and told them he didnt have a visa but wanted to stay in the states I think claiming political asylum. They took his passport and put him in "immigration jail" I guess for some background checks. They released him into the states without his passport but with an I-94 card and also a court date for him to plead his case in front of a judge. 9/11 happened shortly before his court date and he claims he was afraid to fly so he never showed up for his case and has been there ever since. Did he enter legally or illegally?

As you noted, illegal entry is not forgiven at AOS. There is no option to apply before his overstay is detected as you required by law to tell the truth on all of the paperwork under penalty of perjury, fines, and/or imprisonment. That means you MUST tell the truth or face much harsher and more difficult problems.

Regarding his entry status, it does not sound like anything legal. He did not have a visa, he "claimed" political asylum and they put him in jail - this implies that they did not agree with his claim and nothing was legal. Since he never went to court (where he most likely would have been given voluntary deportation or immediately deported) my guess is that he has been illegal in this country since day one.

My suggestion is to consult a qualified immigration attorney like Laurel Scott (www.visacentral.net). She comes highly recommended and is well versed in illegal entry and overstay situations. She has a free chat on Wednesdays - if you're lucky you could get a question in or set up a phone consult with her. She may suggest that they file the I-130 now in hopes of immigration reform passing this year, which may provide an option for him to legalize without leaving the country and going through the 601 waiver process, and instead pay a large fine.

Hope this helps.

i would consult with a lawyer
it sounds a but tricky
the first steps you take will be important

does this guy have a legal job?

There's no such thing with an illegal entry.

Could have been paroled in, but would have no work authorisation.

I-94 is a proof of legal (inspected) entry.

Asylum FAQ from USCIS

Interesting points:

How Do I Apply?
To apply for asylum, you will need to complete Form I-589, Application for Asylum and for Withholding of Removal, and follow the instructions carefully. The form I-589 is available here. Forms are also available by clicking on the link, by calling the forms request line at 1-800-870-3676, or by submitting a request through our forms by mail system.


Can I Still Apply For Asylum Even If I Am Illegally in the United States?
Yes, you may apply even if you are here illegally. You may apply for asylum regardless of your immigration status as long as you file your application within one year of your last arrival or demonstrate that you are eligible for an exception to that rule based on changed circumstances or extraordinary circumstances, and that you filed for asylum within a reasonable amount of time given those circumstances.


What If I Fail To Appear For My Asylum Interview?
If USCIS does not receive a written explanation for your failure to appear within 15 days after the date of the scheduled interview, your case will either be referred to the Immigration Court or your case will be administratively closed if you are still in valid status. See 8 CFR § 208.10. The Asylum Office Director has discretion to reschedule your interview if you provide a reasonable explanation for your failure to appear. If you establish exceptional circumstances for the failure to appear or that USCIS did not properly notify you of the interview, USCIS must reschedule your interview.

Failure to appear at the interview may affect your eligibility to apply for work authorization. You are generally eligible to apply for work authorization 150 days after you submit a complete application to the Service Center if a decision has not been made on your asylum application. However, if you applied for asylum on or after January 4, 1995, you will be ineligible for employment authorization if you fail to appear for an interview, unless your failure to appear is excused. See 8 CFR § 208.7(a)(4).